Hendy v Deputy Child Support Registrar - [2001] FamCA 632

[2001] FamCA 632

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                Appeal No NA45L of 2000
AT BRISBANE  File No BR817 of 1999
BETWEEN:

HENDY
Applicant Father
- and -
DEPUTY CHILD SUPPORT REGISTRAR
First-named Respondent
- and -
WEBB
Second-named Respondent

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  ELLIS, KAY & MULLANE JJ
DATE OF HEARING:                 31 May 2001
DATE OF JUDGMENT:             5 July 2001

APPEARANCES: The Applicant Father appeared in person.

Mr Bennet, one of Her Majesty's Counsel with Mr Forrest of Counsel, instructed by Australian Government Solicitor, Level 15/340 Adelaide Street, Brisbane Qld 4000, appeared on behalf of the First-named Respondent.
The Second-named Respondent appeared in person.

HENDY v DEPUTY CHILD SUPPORT REGISTRAR & WEBB
NA 45L of 2000
Coram: Ellis, Kay and Mullane JJ
Date of Hearing: 31 May 2001
Date of Judgment: 5 July 2001

CHILD SUPPORT- enforcement- - whether Part 6A departure determinations can be made in relation to future child support periods- whether Part 6A of the Child Support (Assessment) Act confers judicial power upon departmental officers and is therefore unconstitutional- whether the current Part 6A review process involves a denial of natural justice

The parties were in a de facto relationship and had two children, born in 1993 and 1995. The parties separated in 1994 and the children have remained in their mother’s care since that time. During the relationship, the father operated a successful drafting business.

Child support assessments were made on 19 April 1995, 20 August 1996, 11 November 1997 and 16 August 1999 which fixed the child support amount payable by the father at that time. The father largely failed to meet his child support obligations. At the time of the proceedings before Jordan J, a Certificate of Child Support Debt was filed evidencing a total registrable maintenance liability of $41,664.64, being $30,333.59 owing under assessments for child support and $11,331.05 in penalties.

Proceedings were commenced by way of an Enforcement Summons filed by the DCSR on 1 September 1999. On 25 October 1999 the father filed a Form 63 application which sought orders that the four determinations purported to be made by the DCSR be declared a nullity or otherwise be set aside, and a declaration made that all alleged debts and penalties on the Register be deleted pursuant to s 141(1)(n) of the Child Support (Assessment) Act (“the Act”).

The applicant father contended that the decisions made by the Deputy Child Support Registrar (DCSR) were invalid and that therefore all alleged debts and penalties should be deleted.

Jordan J dealt with the submissions put forward by the father. His Honour found that the Child Support Review Officers were duly authorised to exercise the powers of the Child Support Registrar at all material times. His Honour rejected the argument put forward by the father that the failure by the legislature to amend s 35 of the Act to make provision for a further exception to the application of the administrative formula, invalidated the whole of Part 6A or any determinations made pursuant to that Part.

The trial Judge also rejected the father’s argument that s 98B only referred to administrative assessments “in force”, so that it was not open to make departure orders in relation to child support periods in the future (Johnson v Johnson (1999) FLC 98-004 applied)

Lastly, his Honour rejected the father’s argument that Part 6A purported to confer judicial power upon departmental officers and in doing so offended against the provisions of Chapter III of the Constitution.

On appeal, the father argued that there were inadequate reasons given by the learned trial Judge for rejecting his submissions. In addition he resubmitted that

the evidence did not support a conclusion that there were proper delegations made to each of the persons making the determinations
the failure to amend s 35 to include the further exception invalidated the whole of Part 6A or any determinations made pursuant to the Part

the Child Support Registrar could not make a determination that had effect beyond the period of the assessment being reviewed

multiple determinations can only be created for the same period as is covered by the first determination
the exercise of Part 6A power was an invalid exercise of judicial power
the failure to provide an appropriate method of judicial review of the findings of a Registrar during the determination process vitiates the entire process on the basis of a denial of natural justice

The father also argued that the learned trial Judge erred in awarding costs to the DCSR on the basis that the Court had no jurisdiction to entertain the enforcement summons, or if it did have jurisdiction it should not have exercised that jurisdiction in favour of the Deputy Registrar.

Held: in dismissing the appeal

(per Ellis, Kay and Mullane JJ)

The bases given in each circumstance complained of in this case were clear. It was possible to discern the basis upon which the decision was given. The reasons given by the trial Judge were adequate.

His Honour’s reason for rejecting the submission that there was no proof of authorised delegations was clear. He accepted the evidence that established that each named officer who had made a determination in the matter was duly authorised at all material times to exercise the powers of the Child Support Registrar.

Despite the present wording of s 35, the clear effect of ss 75(1), (4) and (5) of the Act is that the Registrar has power to issue an administrative assessment under Part 5 to give effect to a determination for departure made under Part 6A.

s 98S(3) prescribes that the Child Support Registrar may make determinations in relation to multiple child support periods, and there is nothing contained in that or any other provision that would lead to a conclusion that such references must be construed as only applying to current or previous child support periods.

Whilst lamenting the failure of the legislature to add to s 75(3) words which put it beyond argument that a Part 6A determination might properly be the basis for an amendment of an administrative assessment, there is no reason to depart from the compelling logic of Johnson v Johnson (1999) FLC 98-004 when determining in the affirmative that there was in force as at each of the relevant dates an administrative assessment of child support in relation to the children for whom the applicant was liable to pay child support.

Part 6A of the Act does not involve the making of a conclusive determination. Any determination by the Registrar to depart from the formulaic administrative assessment is open to challenge by a judicial process, namely an application for a departure order under Division 4 of Part 7.

There appears to be significant confusion as to whether the Family Law Rules as presently drafted adequately provide for the availability of Order 33 remedies when seeking to enforce debts due to the Commonwealth under s 30 of the Child Support (Registration and Collection) Act 1988 where such debts have arisen by means of a registered administrative assessment. Those responsible for framing the Family Law Rules should pay urgent attention to this possible deficiency in the Rules as presently drafted.

There is no merit in the application that somehow the departure determination process conducted under Part 6A is in breach of the rules of natural justice.

It is well established that a trial judge has a wide discretion to make an order for costs, and no error could be detected in the manner in which his Honour dealt with the costs issue.

APPEAL DISMISSED

FATHER TO PAY $2,500 TOWARDS THE DCSR’S COSTS

REPORTABLE

This is an application for leave to appeal from all of the orders made by Jordan J on 3 November 2000. His Honour dismissed the applicant’s Form 63 Application which sought declarations as to the asserted invalidity of some child support assessments levied against the applicant. His Honour also heard and determined an enforcement summons brought by the Deputy Child Support Registrar ("DCSR"), ordering that the applicant take all necessary steps to pay the DCSR any remaining funds standing to the credit of a company, Z Pty Ltd. He also ordered the applicant to pay 40% of the DCSR’s costs of the proceedings.

By his Draft Notice of Appeal the applicant seeks the following orders:

"1. That the following Determinations made Under PART 6A

Application

Decision

Officer

Period of decision

1 5 Jan 1995

19 April 1995

Virginia Ryan

5 Jan 1995 to 30 June 1995

2 4 March 1996 20 Aug 1996 Judith Williams 1 July 1995 to 30 June 1997

3 25 June 1997 11 Nov 1997 Kaarina Ammala 3 Sept 1997 to 30 June 1999

4 16 June 1999 16 Aug 1999 Bruce Doyle 1 July 1999 to 31 December 2001
are invalid, that a declaration or Finding of such be made.
2.That the making of a PART 6A Determination for a Child Support Period when no Administrative Assessment (Part 5, Legislatively Fixed Standard) exists is invalid.
3.That a PART 6A Determination is not an Administrative Assessment (PART 5 Legislatively Fixed Standard) for the purposes of making a First Determination (PART 6A Departure) from an Administrative Assessment for a Future Child Support Period the making any such Determination is invalid (sic).
4.That a subsequent PART 6A Departure Determination from a Part 6A Departure Determination can not be made for a future child Support Period, any such assessment is invalid.
5.That Part 6A is an exercise of Judicial Power, and as such is invalid, unconstitutional (sic).
6.That enforcement orders of both the Family Law Court 3/11/00 and the Magistrates Court Feb 1997 are invalid or a nullity and that they be revoked."

BACKGROUND

The applicant is the father of two children, A born in June 1993 and B born in February 1995. The children reside with their mother, the parents having separated in June 1994.

During the relationship, the applicant operated a successful draughting business earning a taxable income of $36,829 for the 1993/1994 financial year. In April 1995 the applicant incorporated Z Pty Ltd, and thereafter conducted his business through that entity.

The applicant was continually assessed to pay child support from 1994. The administrative assessments were the subject of several departure determinations by Senior Case Officers (formerly called Review Officers). In particular, determinations were made on

19 April 1995,

20 August 1996,

11 November 1997 and

16 August 1999

The 1995 determination increased the administrative assessment that had issued for 1 July 1994 to 30 June 1995 from an annual rate of $2,652 to an annual rate of $5,344.92 for the period 5 January 1995 until 30 June 1995.

The 1996 determination increased the amount payable that had been calculated by reason of the applicant's estimate of his taxable income, from $1,522 for the year 1 July 1995 to 30 June 1996, to $5,500 for the same period and to $5,720 for the period 1 July 1996 to 30 June 1997.

The 1997 determination increased the assessed amount of $1,532 for the period 1 July 1997 to 30 June 1998 by increasing the sum to $5,720 payable from 3 September 1997 to 30 June 1999.

The 1999 determination increased the assessed amount payable after 1 July 1999 from an annual rate of $4,423 up to $6,000 for the period 1 July 1999 to 31 December 2001.

The applicant failed to meet his child support obligations. At the time of the proceedings before Jordan J, a Certificate of Child Support Debt was filed evidencing a total registrable maintenance liability of $41,664.64, being $30,333.59 owing under assessments for child support and $11,331.05 in penalties.

Proceedings were commenced by way of an Enforcement Summons filed by the DCSR on 1 September 1999. On 25 October 1999 the applicant filed a Form 63 application which sought orders that the four determinations purported to be made by the DCSR be declared a nullity or otherwise be set aside, and a declaration made that all alleged debts and penalties on the Register be deleted pursuant to s 141(1)(n) of the Child Support (Assessment) Act 1989 (hereafter “the Act”).

At the time of the hearing of that application, the DCSR sought a declaration as to debt, a declaration that the company Z Pty Ltd was the alter ego of the respondent, a consequential order that funds standing to the credit of the company be paid to the children's mother in partial discharge of the applicant’s liability, and an order relating to the future operations of the applicant’s draughting service business.

JUDGMENT OF THE TRIAL JUDGE

In his judgment Jordan J, after setting out the background information, determined that it was logical to first deal with the applicant’s Form 63 application seeking to set aside the assessments and discharge the arrears.

Before setting out details of his Honour's judgment it is convenient to provide a short overview of the process under attack in these proceedings. It is governed by the provisions of the Act.

The Child Support (Registration and Collection) Act 1988 appointed the Commissioner of Taxation as the Child Support Registrar, and each Second and Deputy Commissioner as a Deputy Registrar of Child Support. Section 149 of the Act provides that the Registrar may delegate all or any of the Registrar's powers to (inter alia) a Deputy Registrar.

In broad terms, a person with the care of a child may make application for administrative assessment of child support payable by the other parent (or parents). If the eligibility criteria set out in Parts 3 and 4 of the Act are met, the Child Support Registrar then calculates the sum payable for child support for any given period by reference to the taxable income of the liable parent for the year prior to the assessment being made. The calculation is in accordance with a formula set out in the Act that takes into account (inter alia) the number of children who have an entitlement to be supported by the liable parent (or parents).

The Act enables the liable parent(s) to submit an estimate of current taxable income if the historical base used is not reflective of it. A balancing adjustment is made when the actual income becomes known.

If either party is dissatisfied with the application of the child support formula then an application can be made under Part 6A asking the Child Support Registrar to make a departure determination altering the sum payable. Alternatively an application can be made to a court exercising jurisdiction under the Act to make a departure order under Division 4 of Part 7 or an order for the provision of child support otherwise than in the form of periodic amounts paid to the child's carer under Division 5.

An application for a departure order concerning periodic payments cannot be made unless there has been a departure determination by the Registrar and a review of any objection to that determination under Part 6B or the Court determines that it is in the interests of the parents to deal with the application at the same time as it deals with other matters in issue between them (such as property proceedings or parenting orders)(s 116).

Section 149 provides:

"Delegation
(1) The Registrar may, in writing, delegate all or any of the Registrar's powers or functions under this Act to:
(a)a Deputy Registrar; or
(b)the Secretary to the Department of Social Security; or
(c)an officer or employee of:
(i)the Agency (within the meaning of the Public Service Act 1999) of which the Commissioner is the Agency Head (within the meaning of that Act); or
(ii)the Department of Social Security.

(1AA) The Registrar may, in accordance with service arrangements, delegate in writing all or any of his or her powers or functions under this Act to the CEO or an employee of the Services Delivery Agency.
(1A) Without limiting the generality of subsection (1), the Registrar may also, in writing, delegate all or any of the Registrar's powers or functions to a person engaged by the Registrar for the purposes of Part 6A.
(2) A delegation may be made subject to a power of review and alteration by the Registrar, within a period specified in the delegation, of acts done under the delegation.
(3) A delegation continues in force even though there has been a change in the occupancy of, or there is a vacancy in, the office of Registrar, but, for the purposes of the application of subsection 33(3) of the Acts Interpretation Act 1901 in relation to such a delegation, nothing in any law is to be taken to preclude the revocation or variation of the delegation by the same or a subsequent holder of the office."

The first submission of the applicant made at the trial related to delegation. He submitted that the assessments and decisions made by Child Support Review Officers and the Senior Case Officers were made without proper delegation, or that there was no evidence of any such delegation.

His Honour rejected that submission. He examined written certificates of delegation which proved that each officer who made a determination in this matter was duly authorised to exercise the powers of the Child Support Registrar at all material times, and that accordingly their decisions were valid processes under the Act.

The applicant’s next submission was that an administrative assessment applying a statutory formula pursuant to s 35 could only be modified upon one or more of the grounds prescribed in s 35 of the Act.

That section provides as follows:

"This Division applies in relation to the assessment of child support payable for a child by a liable parent:
(a)except to the extent otherwise provided in Division 2 (Modifications of the basic formula for certain cases); and
(b)subject to any order made by a court under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances); and
(c)subject to any provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent."

His Honour noted that the Act was amended in 1992 to make provision for departure applications similar to those prescribed in Division 4, Part 7, save that such reviews were to be conducted by the Registrar or his duly authorised officer. However s 35 was not subsequently amended to make provision for a further exception to the application of the administrative formula, being a departure determination pursuant to Part 6A. The applicant submitted that the refusal or failure of Parliament to make provision for the new exception must be accepted at face value, and that Part 6A is accordingly invalid.

His Honour accepted the submission of the DCSR that the failure by the legislature to amend s 35 to include the further exception did not invalidate the whole of Part 6A or any determinations made pursuant to it, as it was clear that the intention of the legislature was that the provisions of Part 6A were to provide a further exception to the general application of the basic formula.

His Honour then turned to what he described as "the third and fourth submissions" which related to questions of timing. The applicant’s submission was that Part 6A determinations could not be made so as to extend beyond the period of assessment made under Part 5.

Section 98B provides (emphasis added):

"(1) If, at any time when an administrative assessment is in force in relation to a child:
(a)the liable parent concerned; or
(b)the carer entitled to child support concerned;

is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child, the liable parent or carer may, by written application, ask the Registrar to make a determination under this Part.

(2) The parties to the proceedings under this Division are the liable parent and the carer entitled to child support."

Section 98S provides (insofar as is relevant):

"(1) Subject to section 98A, the determinations that the Registrar may make under this Part are as follows:
(a)a determination varying the rate of child support payable by the liable parent concerned;
(b)a determination varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;
(c)a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the liable parent;
(d)a determination varying the child support income amount or disregarded income amount of the carer entitled to child support concerned;
(e)a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled to child support;
(f)a determination directing that one or more of the following provisions is not to apply:
(i)section 42 (Cap on child support if child support income amount exceeds 2.5 times yearly equivalent of relevant AWE amount);
(ii)section 52 (Cap on combined child support liabilities of 2 liable parents);

(g)a determination varying a factor ascertained under paragraph 54(1)(b).

(2) In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
(3) A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period.
…"

His Honour rejected the submission that s 98B limited the time span of a departure determination. He held that s 98S(3) prescribed that the Child Support Registrar may make determinations in relation to multiple child support periods, and that there was nothing in that or other provisions of the Act that would enable him to conclude that such references must be construed as only applying to current or previous child support periods. His Honour accepted that the provisions of s 98B were enabling rather than limiting.

The fifth submission was that as the Court had power to make departure orders from administrative assessments and as a departure determination was not an administrative assessment, any determination of a departure application from a departure decision must be invalid. His Honour held that the Full Court in Johnson v Johnson 24 Fam LR 130 specifically rejected this argument.

The sixth submission was that Part 6A of the Act purported to confer Judicial powers upon departmental officers and that this must necessarily be an invalid exercise of power, being one offending against the provisions of Chapter III of the Constitution. His Honour accepted the submissions of counsel for the DCSR, that the legislature has chosen to place the function of review of the administrative assessment process in the first instance within an administrative process, which was subject ultimately to judicial review. He held that the power to be exercised was one of administrative adjudication and not an exercise of the judicial powers of the Commonwealth.

The applicant’s final submission asserted that a court could overturn a decision of a Review Officer. His Honour was of the view that the authority to do so was not in question; rather the issue was whether the Court could be persuaded to interfere with the previous assessments referred to in the applicant’s Form 63.

Having dealt with each of the applicant’s submissions and having determined that none of the arguments advanced by him were successful, his Honour dismissed the applicant’s Form 63 application.

His Honour was also satisfied that Z Pty Ltd was the alter ego of the applicant, and that the applicant should be required to pay to the Registrar certain monies standing to Z Pty Ltd’s credit with a building society, described by his Honour as "a few hundred dollars".

The DCSR had also sought an order that:

"…for such time as the Respondent is providing his drafting services for commercial gain, he is hereby restrained from providing his drafting services to any third party through any entity such as a company, partnership, trust or joint venture and he shall only enter into contracts for the provision of those services in his own personal capacity, and he shall inform any third party with whom he contracts to provide his drafting services that any sum that becomes due and owing for the provision of such services by him shall be payable to him".

His Honour declined to make such orders that would regulate the way the applicant sought employment and was remunerated.

Finally Jordan J ordered the applicant to pay 40% of the DCSR’s costs. His Honour said that the proceedings should be more properly perceived as being civil proceedings between the Commonwealth as a third party and the applicant as a citizen, rather than as between parties to a marriage. This weakened the application of the general principle in s 117(1) of the Family Law Act that each party should bear their own costs.

THE APPLICATION AND THE APPEAL

Leave to appeal

An appeal from a single judge of the Family Court exercising jurisdiction under the Child Support (Assessment) Act 1989 lies only with the leave of the Full Court (s 102). On 8 March 2001 Lindenmayer J directed that the application for leave be argued with the proposed appeal. None of the parties to the appeal have chosen to direct any of their submissions to the leave question. The submissions of the parties are directed entirely to the substantive aspects of the appeal. Most of the proposed grounds of appeal arise from the trial Judge's exercise of jurisdiction under the Act. The enforcement orders and part of the costs orders arguably arise under an exercise of the Family Law Act jurisdiction and may be the subject of an appeal as a right.

The circumstances in which leave to appeal is required frequently presents itself to the Court when dealing with interlocutory orders. In Rutherford v Rutherford (1991) FLC 92-255; 15 Fam LR 1 the Full Court discussed when leave might be granted in such cases. Their Honours followed the High Court decision in Adam P. Brown Male Fashions Pty Ltd v. Philip Morris Inc (1981) 148 CLR 170 at 177, where the High Court observed in relation to appeals from interlocutory orders that there needs to be an error of principle and/or a substantive injustice demonstrated. The issue as to whether it was necessary to show both was left undecided.

In Bassingthwaite v Leane (1993) FLC 92-410 ;16 Fam LR 918the Full Court, when dealing with a child support matter said at FLC 80,198:

"The order appealed from is not an order of practice and procedure but a substantive order. For this reason we consider that perhaps the principles enunciated in Rutherford may be too restrictive for appeals against substantive orders made under the child support legislation."

Then in Gilmour v Gilmour (1995) FLC 92-591;18 Fam LR 646 a differently constituted Full Court said at FLC 81,843 :

"…in granting leave for the reasons which we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing we would, however, draw attention to the unreported decision of Conn v Martusevicius (delivered in Melbourne on 9 June 1992) in which, in dismissing an application for leave to appeal pursuant to s 102 of the Assessment Act, both Barblett DCJ and Nygh J in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principles stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act."

Finally in Wild v Ballard (1997) FLC 92-771; 22 Fam LR 291 the Full Court said at FLC 84,488 (citations omitted):

"As already indicated s 102 of the Child Support (Assessment) Act provides that an appeal from a single judge of the court exercising jurisdiction under that Act lies only with the leave of the Full Court. In Gilmour and Gilmour the Full Court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Leane and Best and Best that leave applications under this legislation ought be approached less restrictively than were this an application from an interlocutory order. The court said that if a party’s substantive rights have been significantly affected by an error at first instance, then it would be appropriate to grant leave to appeal under the section. It is appropriate then to examine whether the appellant has had his substantive rights significantly affected by any error of principle made by the trial judge."

We shall approach our task of determining whether to grant leave bearing in mind that we should not be too restrictive if we perceive there has been any error of principle which has affected the applicant's substantive rights.

Grounds of Appeal

The wife appeared in this matter and did not make any oral submissions, as she chose to rely on her written submission. She sought that the application and appeal be dismissed. In this case the applicant is self-represented. The grounds of appeal as contained in the Draft Notice of Appeal filed on 21 March 2001 have been set out as submissions under seven different headings, each with numerous sub parts.

We have taken into account what the High Court said in Neil & Nott (1994) 68 ALJR 509 at 510:

“A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.”

Rather than setting out the grounds of appeal seriatim, we have attempted to extract out the gravamen of each ground of appeal.

1. The learned trial Judge did not give adequate reasons for deciding that the various assessments and decisions of the Child Support Review Officers were made with proper delegation. Even if the reasons are adequate the conclusion reached is wrong. The evidence did not support a conclusion that there were proper delegations made to each of the persons making the determinations. In particular there was no evidence of a proper delegation for Cathie Argall (sic) [a Deputy Child Support Registrar].

2. No adequate reasons were given for determining that the failure to amend s 35 to include the further exception did not invalidate the whole of Part 6A or any determinations made pursuant to the Part. Alternatively the Part 6A process was subservient to and governed by s 35 which did not allow for the amendment of an assessment by Registrar's determination.

3. The trial Judge erred in concluding that the Child Support Registrar could make a determination that had effect beyond the period of the assessment being reviewed.

4. That the learned trial Judge erred in rejecting the submission that multiple determinations can only be created for the same period as is covered by the first determination. A fresh determination could only be made when there was a fresh assessment in force.

5. The learned trial Judge gave no adequate reasons for his decision to reject the submission that the exercise of Part 6A power was an invalid exercise of judicial power. Alternatively the learned trial Judge erred in rejecting that submission.

6. The failure to provide an appropriate method of judicial review of the findings of a Registrar during the determination process vitiates the entire process on the basis of a denial of natural justice.

7. The learned trial Judge erred in awarding costs to the DCSR on the basis that the Court had no jurisdiction to entertain the enforcement summons, or if it did have jurisdiction it should not have exercised that jurisdiction in favour of the Deputy Registrar.

Adequacy of reasons generally

Several of the applicant's grounds of appeal assert that there are inadequate reasons given by the learned trial Judge.

The requirement to give adequate reasons is conveniently summarised by the Full Court in Merriman v Merriman (1993) FLC 92-422; 17 Fam LR 22 where their Honour's said at FLC 80,351(citations omitted):

“Following the decisions of the Full Court of this court in Bennett and Bennett, Horsley and Horsley and Bonnici and Bonnici the principles governing the need for the giving of adequate reasons for the exercise of the discretion to alter interests in property under s 79 of the Family Law Act are well established. For present purposes they are perhaps best expressed in the following passage from the judgment in Horsley:
‘.Counsel for the wife contended that the trial judge did not give adequate or any reasons for his decision and that his failure to do so amounted to an error of law and additionally contended that his Honour’s discretion had miscarried. In Bennett and Bennett the Full Court considered a similar argument (also advanced in that case by the same counsel) and after referring to a number of authorities, including Pettitt v Dunkley, Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd, Soulemezis v Dudley (Holdings) Pty Ltd, Public Service Board of NSW v Osmond, Palmer v Clarke and Ors, referred to the judgment of the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud and in particular to the passage in the principal judgment of Gray J where his Honour said:
‘‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”’

In Bennett’s case the Full Court went on to say:
‘It is unnecessary to decide, in this case, whether the inadequacy of her Honour’s reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the judge’s discretion. In general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.’

The Court concluded on this topic:
‘The important thing is that the appellate court must be placed in the position of being able to follow the trial judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.’”

The conclusion to be drawn from the authorities is that it must be possible to discern the basis upon which the decision is given. In our view, the bases given in each circumstance complained of in this case are clear.

Ground 1 - delegation

His Honour’s reasons for rejecting the submission that there was no proof of authorised delegations was that he accepted the evidence, including Exhibit 4, which established that each named officer who had made a determination in the matter was duly authorised at all material times to exercise the powers of the Child Support Registrar. There was no evidence before his Honour that Cathy Argyll made a relevant determination. She merely signed her name to a letter dated 18 November 1997 to which was attached the Review Officer’s Decision dated 11 November 2000. Having regard to the contents of Exhibit 4, it was open to the trial Judge to conclude that each named officer who had made a determination in this matter was duly authorised at all relevant times to exercise the power of the Registrar. The reasons which led his Honour to reject to applicant’s submissions are clear. This ground has not been established.

Ground 2 - the primacy of s 35

The second ground of appeal relates to the lack of adequate reasons given by the trial Judge, who accepted in its entirety the submissions of counsel for the DCSR, that the failure to amend s 35 to include the further exception did not invalidate the whole of Part 6A or any determinations made pursuant to the Part.

As stated above, reasons are “adequate” when an appellate court can follow the reasoning process of the trial Judge. In this case his Honour said:

"12The respondent's second submission appears to be to the effect that an administrative assessment applying a statutory formula pursuant to Section 35 can only be modified upon one or more of the grounds prescribed in Section 35 of the Act. Those grounds, essentially, are by way of a statutory modification pursuant to Division 2, Part 5 of the Act, by a departure application pursuant to Division 4, Part 7 of the Act, or pursuant to a Child Support Agreement.
13The Act was passed in 1989. Originally, Section 35 prescribed the only means of modification as set out above. The Act was amended in 1992 to make provision for departure applications similar to those prescribed in Division 4, Part 7, save that such reviews were to be conducted in-house, as it were, by the Registrar or his duly authorised officer. Indeed, such in-house departure applications became a prerequisite to the filing in Courts of Division 4, Part 7 departure applications pursuant to section 115B of the Act. Section 35 was not subsequently amended to make provision for a further exception to the application of the administrative formula, being a departure pursuant to Part 6A.
14It is submitted that the refusal or failure of the Parliament to make provision for the new exception to the application of the formula must be accepted at face value, and that Part 6A is accordingly invalid.

15Counsel appearing for the Child Support Registrar makes the following submissions (paragraphs 4 to 7 of written submissions):
‘It is clear that the insertion into the Assessment Act of Part 6A in mid-1992 added a further exception to the “pervasiveness of the administrative formula in determining the quantum of liability for an entitlement to child support in cases which fall within its provisions”. So much was recognised by Fogarty J in Lightfoot v Hampson (1996) FLC 92-663 at page 82,849. And just as Kay J lamented in Perryman v Perryman (1993) FLC 92-433 that “It seems unfortunate that s. 75(3) has not been amended to include specific reference to a determination made under Part 6A”, so might one lament that it is also unfortunate that section 35 has not been amended to include specific reference to a determination made under Part 6A. However, the intention of the legislature, evinced by the inclusion of Part 6A, is absolutely clear. Accordingly, the failure to amend section 35 to include the further exception does not invalidate the whole of Part 6A, and any determinations made pursuant to the Part, as the Respondent would have the Court accept.

One of the most fundamental principles of statutory interpretation is the principle that, “a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole” - see Higgins J in The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1920) 28 CLR at 161.
Another principle of statutory interpretation relevant to the determination of this point is the principle that provisions of general application give way to specific provisions when there is apparent internal conflicts between sections within an Act.

Section 35 of the Assessment Act is nothing more than a general provision introducing the application of the basic formula provisions of Part 5 of the Act. There are no specific mandatory words in the section. By inserting Part 6A which provides very specifically for Review Officer amendment to assessments determined by the basic formula, the legislature has clearly intended the provisions of Part 6A to provide another exception to the general application of the basic formula, even if it overlooked adding that exception to the list of exceptions already provided for in section 35. Application of the proper principles of statutory interpretation demands that such intention be recognised and that the general nature of section 35 yields to such specific provision.’

16I accept those submissions and find against the respondent in relation to that point."

These reasons clearly set out the process by which his Honour reached the conclusion that there was no merit in the ground asserted by the applicant. We too adopt the Deputy Registrar's submission as being a correct statement of the relevant legal principles.

In his Second Reading Speech in support of the Child Support Legislation Amendment Bill 1992 which introduced the provisions of Part 6A into the Child Support (Assessment) Act 1989, the Minister for Higher Education and Employment Services and Minister Assisting the Treasurer said (Hansard 27/2/92 p 392 et seq):

“The Bill will give effect to the Budget announcement that there will be an administrative review process available to all persons named in child support assessments who seek to depart from an assessment raised by the Registrar of Child Support.
…
The administrative review process
The Bill will allow a custodian or a liable parent to have an assessment of child support reviewed by an independent person free of charge and without legal representation by a child support review officer who will be employed by the Registrar for that single purpose. The intention is that the parties be able to have an assessment reviewed in the light of their individual circumstances. This review will be a mandatory first step in the general appeal process allowable under the law. It may be exercised at any time during the currency of any assessment which is effective from and after 1 July 1992, but may be based only on the grounds that are presently set out for appeals to the courts.
If the grounds that are already prescribed exist, it will be possible for a determination to be made by the Registrar departing from the assessment in force in the same fashion as a court can order a departure from an assessment. Further rights of appeal to the court are retained against determinations that may be made.”

The Explanatory Memorandum that accompanied the Bill said:

2.4 "…an administrative review process should … be available to the parties and thus avoid the cost of an enforced application to a court as a first step in the review process".

In our view it is clear that this administrative review process was intended by Parliament to complement and override the process of assessing child support by way of an application of the prescribed formula.

The applicant submitted that the failure to amend s 35 to make the application of Division 1 of Part 5 expressly subject to a determination under Part 6A, prevents the valid issue of an assessment under Part 5 that incorporates a determination made under Part 6A. In our view that is not so.

Contrary to what the applicant submits, s 35 does not say or imply that the Division or the whole of Part 5 is not subject to the application of Part 6A. Although set out at par 24 above, it is convenient to set the section out again. It provides:

“35. This Division applies in relation to the assessment of child support payable for a child by a liable parent:
(a)except to the extent otherwise provided in Division 2 (Modifications of the basic formula for certain cases); and
(b)subject to any order made by a court under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances); and
(c)subject to any provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent.”

If s 35 did not include the qualification in paragraph (b), the Registrar would still have power to issue an administrative assessment under Part 5 to implement an order of a Court made under Division 4 of Part 7 because s 119 requires:

“(1) When a decision of a court making an order under this Division becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision in relation to any administrative assessment that has been made in relation to the child, the carer entitled to child support and the liable parent concerned (whether by amending the assessment or otherwise).
(2) In subsequently making an administrative assessment in relation to the child, the carer entitled to child support and the liable parent concerned while the order is in force, the Registrar must act on the basis of the provisions of this Act as modified by the order.”

Similarly, if s 35 did not include paragraph (c) the Registrar would still have power to issue an administrative assessment under Part 5 to implement provisions of an accepted child support agreement for them to have effect for purposes of Part 5, as if they were an order made by consent (ss 93, 95, & 119).

In addition s 75, which is contained in Part 5, provides (inter alia):

"(1)     The Registrar may, at any time, amend any administrative assessment by making such alterations and additions as the Registrar considers necessary to give effect to this Act.
…
(4)      Where a provision of this Act expressly authorises the Registrar to amend an administrative assessment, that provision does not by implication limit the power of the Registrar (whether under this section or otherwise) to amend the assessment.
(5)      Except as otherwise expressly provided in this Act, every amended administrative assessment is to be taken to be an administrative assessment for all the purposes of this Act."

We are of the view that despite the present wording of s 35, the clear effect of ss 75(1), (4) and (5) is that the Registrar has power to issue an administrative assessment under Part 5 to give effect to a determination for departure made under Part 6A.

This ground of appeal must also fail.

Ground 3 -determinations extending beyond the assessment period

In his third ground of appeal the applicant argues that the DCSR exercising Part 6A power is limited to dealing only with the period covered by an administrative assessment when making a departure determination. He argued that any power a judge might have to extend the period beyond the assessment is derived from s 141 of the Act but no similar power has been given to the Registrar.

The power of the Registrar to depart from the provisions of the Act relating to administrative assessment, being the calculation of child support by reference to the formula laid down in Part 5 of the Act, is to be found within the confines of Part 6A. Two procedures are laid down. Division 2 deals with departures initiated by a liable parent or carer. Division 3 deals with departures initiated by the Registrar. In this case we are concerned with departures initiated by the child's carer.

Section 98B(1) empowers a carer entitled to child support to make an application for departure from the provisions of the Act relating to administrative assessment of child support "at any time when an administrative assessment is in force in relation to a child".

The applicant submits that those words limit the scope of the departure determination to the period covered by the administrative assessment. The Registrar argued and the trial Judge accepted that those words were enabling and were not words of limitation.

Division 4 of Part 6A now provides in s 98S the determinations that the Registrar may make under Part 6A. The relevant provisions of s 98S are set out above at par 29 of this judgment. In particular s 98S(3) provides:

"A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period."

Until the coming into force of Act 120 of 1998 in December 1998 identical provisions were to be found in s 98D(2).

We agree with the trial Judge that s 98S(3) prescribes that the Child Support Registrar may make determinations in relation to multiple child support periods, and that there is nothing contained in that or any other provision that would lead to a conclusion that such references must be construed as only applying to current or previous child support periods. The first part of s 98S(3) would be meaningless if it only applied to the child support assessment period under review.

As to the power of a court to make an order beyond the year of assessment see the comments of Lindenmayer J in Dwyer v McGuire (1993) FLC 92-420; 17 Fam LR 42 where his Honour said at FLC 80,316:

"In any event, I believe that the structure of the Act is such that once a valid application for departure has been made, it throws open for consideration by the court the question of departure from the administrative assessment provisions of the Act not only in respect of any current or past child support years but also in respect of any future years. Although nothing in the Act says so specifically, I think this is clear by inference from provisions such as ss 118(2), 119(1) and 119(2). Section 118(2) provides that in making an order under s 118 the court may make different provision in relation to different child support years. Section 119(1) provides that upon a departure order becoming final, the registrar must immediately take such action as is necessary to give effect to that order 'in relation to any administrative assessment that has been made ' (my emphasis), but s 119(2) then goes on to provide that 'in subsequently making an administrative assessment... while the order is in force, the Registrar must act on the basis of the provisions of this Act as modified by the order' (my emphasis). See, also, Regulation 9, which says that the court may make orders containing provisions of various kinds, including '(e) the period for which the variation is to remain in force'. I am aware of many reported decisions of the court in which departure orders have been made in respect of future child support years for which an administrative assessment had not been made."

Therefore this ground has not been established.

Ground 4 - determination made before relevant assessment in force

In his submissions in support of the fourth ground of appeal the applicant asserts that the trial Judge completely misunderstood the submission when ruling:

"22. It appears to be submitted further by the respondent that any determination of a departure application from a departure decision must be invalid, because one can only make a departure application from an administrative assessment.
23. In my view, that point is covered directly and was rejected by the Full Court in Johnson v Johnson (1999) FLC 98-004 (sic). I am bound by, and in agreement with, the observations made in that case and, in my view, that renders that submission invalid."

The applicant asserts that the submission is "that a Second Determination to create a new Determination for a Future Child Support Period, while retaining (keeping) the First Determination is invalid".

Whilst the wording of this ground might leave the reader wondering what the gravamen of the submission is, the matter is clarified by paragraph 1.5 of the written submissions made to the trial Judge and pars 5, 6 and 7 of the written submissions filed in support of this application.

The complaint is based on the fact that the last two applications made by the carer of the child for a departure determination were made prior to any assessment coming into force. The relevant dates of those applications were 25 June 1997 for the child support period commencing 1 July 1997 and 16 June 1999 for the child support period commencing 1 July 1999. It was submitted that s 98B permits an application for a departure determination to be made only during a time when there is an administrative assessment in force. It was submitted that in June 1997 and in June 1999 child support was determined not by administrative assessment under Part 5 but by the Registrar's determination under Part 6A and that no administrative assessments were in force within the meaning of the Act at the time each application was made.

Section 5 defines administrative assessment as meaning, unless the contrary intention appears, "assessment under Part 5". Part 5 contains the process by which an administrative assessment is to be calculated. Section 75 (set out in par 62 above) empowers the Registrar to amend any administrative assessment at any time to by making such alterations and additions as the Registrar considers necessary to give effect to the Act.

"75 (5) Except as otherwise expressly provided in this Act, every amended administrative assessment is to be taken to be an administrative assessment for all the purposes of this Act."

A similar argument failed to find favour with the Full Court in Johnson v Johnson 24 Fam LR 130 . One of the matters considered in Johnson was an appeal against a departure order that had been made by a judge exercising Division 4 of Part 7 power after a nil assessment had been varied by a registrar's determination.

Section 115 begins with the words "This division applies to an administrative assessment of child support…". In their joint judgment Nicholson CJ and Moore J said:

"[74] As we understand it, the argument was that where a Child Support Registrar has made a departure order under s 98B of Part 6A, this is the operative administrative assessment until an application is made for a departure order is made. The powers of the Registrar to alter administrative assessments are contained in s 75 of the Act, which was enacted prior to the introduction of the administrative review provisions contained in Pt 6A of the Act. …
[75] In In the Marriage of Perryman (1993) 17 Fam LR 200; FLC 92–433 Kay J said at Fam LR 211; FLC 80,420:
It was the submission of the registrar supported by counsel for the wife, that the document which issues as a result of the recommendations of the child support review officer is merely an amended ‘administrative assessment’ which has been made by an exercise of the registrar of his power under s 75.
I have some difficulty with the concept that one can make an administrative assessment by determining to depart from the provisions of the Act relating to an administrative assessment which it is determined to depart from. The matter is perhaps saved by the provisions of s 75 (5). It seems unfortunate that s 75 (3) has not been amended to include specific reference to a determination made under Pt 6A.
It would seem that by operation of s 75 the process of applying a formula and then departing from the formula by a Child Support Review Officer still creates an ‘administrative assessment’. Thus, where such process has been undertaken and either party is aggrieved by the amended assessment, the provisions of s 115 (b) of the Child Support (Assessment) Act apply. This court is then seized with power to hear an application for an order for departure from the administrative assessment as so amended. It would appear that the process and findings of the review officers will not of themselves be subject to any scrutiny by the court.
The process that occurs before a review officer, although having some of the hallmarks of a judicial hearing (an opportunity to be heard and notice of the proceedings), is intended to be an administrative process. If the result that administrative process creates is not satisfactory to either of the parties affected by it, their remedy lies in seeking to persuade a court exercising jurisdiction under Div 4 of Pt 7 to make an order departing from the result, based on the criteria set out in s 117. …

[76]     Counsel for the husband submitted to his Honour that once the Court came to consider s 117 (2) (c), the reference to administrative assessment contained in that subparagraph must be construed as a reference to the original formula assessment having regard to the definition of that term in s 5. He put it that the reference is not a reference to the administrative assessment or an administrative assessment but to administrative assessments in general.
[77] This is a curious argument, because if the original formula assessment is the assessment under consideration then in the present case there would be no reason for the husband to have sought a departure order from it, as it was a nil assessment. It would be an extraordinary result if, by seeking a departure order from an assessment that has been altered by a registrar pursuant to Pt 6A the wife is then forced to justify a departure from the original assessment provided by the formula if the husband seeks to rely on s 117 (2) (c). In effect, it suggests that the reviewing officer’s determination must be ignored and that when the matter comes to the court the other party must show grounds for departure from the formula assessment.
[78] We would not be prepared to ascribe such a meaning to the Act. It is in our view clear that s 115 envisages that, in cases relating to periods prior to the coming into effect of the amendments contained in Pt 6A of the Act, the Court will consider the administrative assessment made under Pt 5.
[79] In cases relating to periods after that time, the court will consider either the original administrative assessment if the Registrar has refused to make a determination, or the amended administrative assessment if the registrar has made a determination under Part 6A.
[80]     As Kay J pointed out in Perryman’s case (above), while it may be unfortunate that the legislature did not amend s 75 (3) to make it clear that alterations to assessments under Part 6A created administrative assessments within the meaning of s 115 and seq, he thought that sub section (5) had the effect of doing so. We agree with this view.
[81]     We think that this is the clear intention of the legislation and it should be noted that the opening words of s 5, which contains the definition of administrative assessment relied upon by counsel for the husband, are ‘in this Act, unless the contrary intention appears’.
[82] If and in so far as it can be argued that the definition contained in s 5 limits the words ‘Administrative Assessment’ in s 117 (2) (c) to an assessment under Part 5, we think that the structure of the Act and in particular s 115, evinces a contrary intention. Alternatively we would take the view that if a Registrar makes a determination under s 98B, that has the effect of substituting the assessment arising from the determination as the determination under Part 5 and that the reference to administrative assessment contained in s 117 (2) (c) cannot be limited in the manner argued by counsel for the husband: see also In the Marriage of Abela (1994) 18 Fam LR 569; (1995) FLC 92–568 per Nicholson CJ and In the Marriage of Bryant (1996) 20 Fam LR 575;FLC 92–690."

In a separate judgment Finn J agreed with relevant conclusions of Kay J in Perryman saying:

“[79] This issue was, in my view, resolved by Kay J in In the Marriage of Perryman(1993) 17 Fam LR 200; FLC 92–433 (and see also the decision of Nicholson CJ in In the Marriage of Abela (1994) 18 Fam LR 569; (1995) FLC 92–568), when his Honour determined that where an administrative assessment is varied by a Review Officer that varied assessment becomes the assessment for the purposes of any subsequent departure application to the court….
[80] In In the Marriage of Bryant(1996) 20 Fam LR 575; FLC 92–690 the Full Court had occasion to consider the meaning of the expression ‘the provisions of this Act relating to administrative assessment of child support’ in s 117 (2) (c), and also the question whether that expression included only the initial administrative assessment, and not a subsequent departure order nor the periodic payment provisions of a child support agreement. The Full Court concluded that the expression was not limited to the initial administrative assessment. While the Full Court did not address the position of an administrative assessment which has been the subject of variation by a review officer, its reasoning does, in my view, cover that situation…"

Whilst lamenting the failure of the legislature to add to s 75(3) words which put it beyond argument that a Part 6A determination might properly be the basis for an amendment of an administrative assessment, we see no reason to depart from the compelling logic of Johnson when determining in the affirmative that there was in force as at each of the relevant dates in June 1997 and June 1999 an administrative assessment of child support in relation to the children for whom the applicant was liable to pay child support.

The last of the applicant's submissions on this point (submission par 5.7) suggests that if an "administrative assessment" is to include an assessment amended under s 75 to give effect to a parenting agreement then such an agreement would be capable of being departed from by a Part 6A determination. Whilst that issue does not directly arise in this case, we draw attention to the provisions of s 95(2) which provides that an accepted agreement has effect as if it were a consent order under Division 4 of Part 7, and to s 119(2) that requires the Registrar to give effect to such an order whilst it remains in force.

Ground 5 - Does the Registrar exercise Judicial Power?

The fifth ground of appeal asserts firstly that the trial Judge gave no adequate reasons for his decision to reject the submission by the applicant that Part 6A of the Act purports to confer judicial powers upon departmental officers. In our view the trial Judge’s reasoning process is clearly discernible in paragraph 25 of the judgment where he says:

"Again, I accept the submissions of counsel for the Child Support Registrar as they appear in paragraphs 18 and 19 of his written submissions, which I read into the record:
‘The submission probably has its genesis in the fact that the only form of review of the administrative assessment when the Child Support legislation came in was through the Courts and, hence, judicial. However, it is wrong just to assume, therefore, that the power to review the administrative assessment process is necessarily an exercise of judicial power. There have been a number of decisions of the High Court where the difference between the exercise of the judicial power of the Commonwealth and the judicial exercise of an administrative power has been discussed: The Queen v Davison (1954) 90 CLR 353; Reg. v Hegarty (1981) 147 CLR 617; Ranger Uranium Mines Pty Ltd (1987) 163 656.
The legislature has chosen to place the function of review of the administrative assessment process, in the first instance, further within an administrative process subject, ultimately, to judicial review. The power to be exercised is one of administrative adjudication and it is not one of the judicial powers of the Commonwealth that cannot be conferred by statute on other than a Federal Court. It does not offend the constitution’.”

The path by which his Honour chose to reject the applicant's submission is clear. His reasons are adequate.

The applicant resubmitted the argument that Part 6A of the Act requires an exercise of judicial power by the Registrar and as such offends Chapter III of the Constitution. The Commonwealth Solicitor General, Mr Bennett QC appearing for the DCSR, addressed the Full Court on this issue.

The genesis of the complaint is founded in part on the words used by those making the departure determinations. Review Officer Williams reasons contained in the Notice of Decision speak about "The only other issue is to consider the dating of this order" and "generally speaking orders are not backdated" and "I therefore make the following orders…". Child Support Review Officer Ammala was satisfied "that Ms Webb has made out the grounds for a departure order…".

Whilst the decision makers have used words that indicate that they might believe they are carrying out a judicial task, the determination of whether that task is an exercise of judicial power cannot be decided by the terminology used by them, almost certainly inappropriately.

In R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254 Dixon CJ, McTiernan, Fullagar and Kitto JJ at 270 held that:

“… when an exercise of legislative powers is directed to the judicial power of the Commonwealth it must operate through or in conformity with Chap. III. For that reason it is beyond the competence of the Parliament to invest with any part of the judicial power any body or person except a court created pursuant to s.71…”

The High Court has acknowledged that it is difficult to give an exhaustive definition of judicial power. In Cominos v Cominos (1972) 127 CLR 588 Mason J (as he then was) held at 606:

“It has been said on many occasions that an exclusive and comprehensive definition of judicial power cannot be formulated. There is, as Lord Simonds observed in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. [1949] AC 134, at p 148 , a ‘borderland in which judicial and administrative functions overlap’. The exercise of a power which, when entrusted to a repository other than a court, might be characterized as administrative and nonjudicial, may, when entrusted in an appropriate context to a court, be held to be an exercise of judicial power. Sufficient justification for the conclusion that the power is judicial in this sense may be found ‘in an analogy with an admittedly judicial function, or in the fact that the power is ancillary to a judicial function, or in some such consideration’ (Reg. v. Trade Practices Tribunal ; Ex parte Tasmanian Breweries Pty. Ltd. (1970) 123 CLR, at p 374 ). In the same case Menzies J. remarked that assistance in the ascertainment of the true character of a particular power may be provided by history and by an examination of the purpose for which the power was conferred upon the body in which it has been reposed (1970) 123 CLR, at p 387.”

Mr Bennett argued that one of the reasons that it is impossible to give an exhaustive definition of judicial power is that there is an overlap between judicial and administrative power. He submitted that judicial power has a chameleon-like quality where it takes on its surrounds, that is the power is administrative when conferred on an administrative functionary and judicial when conferred upon a federal court (see R v Trade Practices Tribunal; Ex Parte Tasmanian BreweriesPty Ltd (1970) 123 CLR 361; R v Spicer; Ex Parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277; R v Davison (1954) 90 CLR 353; The Queen v Quinn & Anor; Ex Parte Consolidated Foods Corporation (1977) 138 CLR 1; Harris v Caladine (1991) 172 CLR 84; Cabal v United Mexican States [2001] FCA 427.)

He submitted that Part 6A has this chameleon-like character, and the fact that a similar power is also conferred on a court does not preclude the conclusion that the power conferred on the Registrar is non-judicial.

In The Queen v Quinn (supra) Jacobs J referred to Shell Co Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 where Issacs J said:

“some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another… Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government… The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances."

The Solicitor-General also submitted, and we think correctly, that an exercise of judicial power normally involves the making of a conclusive determination. Part 6A of the Act does not involve the making of a conclusive determination, as any determination by the Registrar to depart from the formulaic administrative assessment is not conclusive in that it is open to challenge by a judicial process namely an application for a departure order under Division 4 of Part 7.

In Whittaker v Child Support Registrar [2000] FCA 1733 the precise issue in this matter was considered by Drummond J. In that case, a child support payer sought to invalidate the determinations made by review officers pursuant to applications made under Part 6A of the Act, on the ground that the Registrar or her delegates were invalidly exercising judicial power of the Commonwealth. His Honour found that it was the plain intention of the legislature to confer only non-judicial, administrative power on the Registrar. He also found that the power of a Registrar to decline to make a decision under s 98E(a) of the Act was something “wholly foreign to judicial power”. His Honour said, and we think correctly:

"24 It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses: Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360. See also R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 and HA Bachrach Pty Limited v The State of Queensland (1998) 195 CLR 547 at 562; [1998] HCA 54 at [15] - [16].
25 It is true that, in relation to the provisions governing how the Registrar is to make departures from administrative assessments of child support, he must by force of ss 98B and 98C the Assessment Act make determinations by reference to the same considerations that the Court has to take into account in exercising its jurisdiction under ss 116 and 117, a consideration that points to the Registrar having judicial power. But that is but one indication as to the nature of the function the Registrar performs. It is not decisive of the question: is the Registrar purporting to exercise federal judicial power?
26 It is not a novel proposition to hold that a function may be administrative even though exactly the same function, if required to be performed by a court, will be judicial. In The Queen v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1, the High Court held that the legislative grant of power to the Registrar of Trade Marks to remove a mark from the Register on the ground of non-use did not involve the impermissible conferral of federal judicial power on that administrative official. This was so even though the legislative provision in question (s 23(1) the Trade MarksAct 1955 (Cth)), which also prescribed the criteria for removal, conferred this power on ‘the High Court or the Registrar’ at the election of the party seeking removal, and, where application was made to the Registrar, rather than to the Court, provided by regs 22 and 53 to 59 for its exercise by that official only after the registered proprietor of the mark was given full notice of the applicant's case and full opportunity to contest the application in a hearing before the Registrar, ie, in circumstances in which the Registrar was required to follow a typical judicial procedure in arriving at a conclusion involving disputed questions of fact. The leading judgment was given by Jacobs J. His Honour referred, at 8, to a passage in the judgment of Isaacs J in Shell Co Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, which contains the following:
‘... some matters so clearly and distinctively appertain to one branch of government as to be incapable of exercise by another. ... Other matters may be subject to no a priori exclusive delimitation, but may be capable of assignment by Parliament in its discretion to more than one branch of government. ... The latter class is capable of being viewed in different aspects, that is, as incidental to legislation, or to administration, or to judicial action, according to circumstances. ...’

27 Jacobs J also said at 9 - 10:
‘... The determination of the facts, the existence of which Parliament has prescribed as a condition of the exercise of the administrative function of registration, is not necessarily the exercise of judicial power. The nature of the determination is not altered by the circumstance that an opportunity is given to others, who are strangers to the application, to be heard on the determination of those facts.’

28 As his Honour's judgment at 8 and 9 shows, when the question as to the proper characterisation of a power not exclusive to one of the three arms of government arises, the intention of the legislature as to how the power is to be characterised in the circumstances of a particular case is an important (though not conclusive) consideration. See also Cominos v Cominos (1972) (supra) at 605.
29 It is plain that the legislative intent, in conferring power to make assessments of child support and departures from those assessments on the Registrar, was to confer non-judicial, administrative power only. See s 4 and s 98A(1) of the Assessment Act. Both the liable parent and the carer entitled to child support are, by s 98B(2), parties to an application for a departure from administrative assessment of child support and (where the Registrar is not prepared summarily to refuse the departure application), the one is entitled by s 98G to notice of any such application brought by the other and the right to make any representation regarding the application he or she considers relevant. But the procedure the Registrar is directed to follow in making such a departure determination by s 98H is typically administrative: see s 98H(1)(a), (b) and 98H(4) and (5). Importantly, though an application be properly brought before the Registrar for determination by way of departure from an administrative assessment, that official can decline under s 98EA to make a decision if ‘the issues raised by the application are too complex to be dealt with under this Part’ and leave it to the applicant to make application to the Family Court. That, I think, is a powerful indication against the Registrar's power being characterised as judicial. One feature always present in judicial power (subject only to the ancillary power to postpone by adjournment the time for making the decision) is the duty to make a binding decision. The right to avoid making a decision is wholly foreign to judicial power.
30 That these provisions in the Assessment Act were intended by the Legislature to provide for administrative rather than judicial action is confirmed by the Explanatory Memorandum to the Child Support Legislation Amendment Bill 1992 which resulted in the enactment of Part 6A of the Assessment Act. Reference can be made to the Memorandum pursuant to s 15AB(1)(a) the ActsInterpretation Act 1901 (Cth). This Memorandum contains the following:
‘Summary of proposed amendments
2.1 The Bill will introduce to the child support legislation a process for the administrative review of a child support assessment.

Background to the legislation
...
2.3 In the absence of a private agreement, the only method that is available at present to have the assessment reviewed is through the formal court process and specific provisions are set out in Division 4 of Part 7 of the Act under which they can be reviewed. A decision to have the assessment reviewed by a court is at the cost of the person initiating action and this can be considerable.
2.4 On the grounds of equity and justice an administrative review process should also be available to the parties and thus avoid the cost of an enforced application to a court as a first step in the review process.’

31 In Quinn, an opponent seeking deregistration of a mark had to elect whether to go to the High Court or the Registrar. The Registrar's decision was conclusive (subject only to appeal under ss 23(7) and 111 the Trade Marks Act 1955 (Cth) to the High Court). Yet it was still held that the Registrar's function was administrative. A departure assessment by the Registrar under Part 6A of the Assessment Act is not conclusive. A parent in the position of Mr Whittaker who is subject to an administrative assessment of child support can seek to have that assessment altered by application to the Registrar while retaining an entitlement to make a fresh application for alteration to the Family Court, if not satisfied with the Registrar's determination. The Court exercises power under s 117 to reconsider the Registrar's decision with respect to the departure assessment de novo by reference to the same considerations upon which the Registrar was required to act in making his decision. Moreover, the Court's powers under s 117 extend to making orders by way of departure assessment in place of the Registrar's challenged order that can have full retrospective effect - see s 141(1)(h) the Assessment Act - and overpayments made in compliance with the Registrar's departure assessment, subsequently identified as such by the Court's order under s 117, can be recovered by the payee - see s 79(1)(b) the Collection Act. This lack of finality of a decision of the Registrar is another pointer to the power not being judicial.
32 Further, a departure assessment by the Registrar under Part 6A of the Assessment Act is not a determination enforceable as such. It is enforceable only as a debt due to the Commonwealth, once registered under the Collection Act. That is ‘a strong factor’ weighing against the characterisation of the power exercised by the Registrar as judicial (though such enforceability is not an exclusive test of the exercise of judicial power). See Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 257 and 268 - 269. In contrast, a court order under s 117 has the quality of immediate enforceability: s 119 provides that ‘when a decision of a court making an order under this Division becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision in relation to any administrative assessment that has been made in relation to the child, the carer entitled to child support and the liable parent concerned (whether by amending the assessment or otherwise)’.
33 Commonly, though not invariably, judicial power will involve ‘that power which is brought to bear ... in making binding determinations as to the rights, liabilities, powers, duties or status put in issue in justiciable controversies and, in making binding adjustments of rights and interests in accordance with legal standards’. Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 per Gaudron J at 207; [70]. It can be said against Mr Whittaker that what the Registrar does, in considering whether to exercise the wide discretion conferred on him by ss 98B and 98C to make a departure from an administrative assessment, is consider whether he should create new rights, a factor which suggests that the power is administrative rather than judicial. See Re Dingjan; Ex parte Wagner at 360. Even such a power can, however, still be judicial if the legislature has conferred that power on a court and it ‘is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the Legislature and not by reference to [unspecified] policy considerations’. Re Dingjan at 360. Given the criteria established by s 117, there is no reason to doubt that judicial power is conferred on the courts by ss 116 and 117, though the cognate power conferred on the Registrar by ss 98B and 98C is administrative. "

We thus reject the submission that the powers exercised by the Registrar or his delegates under Part 6A are judicial powers which may only lawfully be given to a court validly constituted under Chapter III of the Constitution.

Whilst the nature of the power granted under Part 6A cannot be affected or defined by the Family Law Rules, in the course of his written submissions Mr Hendy sought to gain strength to his classification argument by referring to the provisions of Order 33 of the Family Law Rules which provide for the enforcement of various prescribed debts.

The essential provisions of that Order relevant to his argument are

"[O 33 r 2]
Enforcement of maintenance etc orders and debts due to the Commonwealth
2 (1) This rule applies to:
(a)the recovery of a debt due to the Commonwealth under section 30 or 67 of the Child Support (Registration and Collection) Act 1988; and
(b)an order that a party pay maintenance or other money for the benefit of the other party, or of a child, made under:
(i)the Act; or
(ii)the Child Support (Registration and Collection) Act 1988; and

(ba)a parenting plan registered under section 63E of the Act that has not been set aside or otherwise ceased to have effect; and
(bb)a parenting order made under section 65D of the Act that has not been discharged or has not otherwise ceased to have effect; and

(bc) an order made under section 67D of the Act; and
(c)a maintenance agreement registered under subsection 86(1) of the Act that has not been set aside or has not otherwise ceased to have effect; and
(d)a maintenance agreement approved under section 87 of the Act in respect of which there is in force an order under paragraph 87(11)(c) of the Act; and
(da)an agreement varying or revoking an original agreement dealing with the maintenance of a child under section 66SA of the Act; and
(e)an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia; and
(f)an order under the Act or the repealed Act for the payment of costs; and
(g)an order made in the exercise of jurisdiction conferred by the Act, the Regulations or these Rules that a person pay a fine or forfeit a recognisance; and
(h)an order under subsection 82(7) of the Act for the recovery of moneys; and
(i)an order under section 117A of the Act for the payment of reparations; and
(j)a liability to pay child support under an assessment or order made under the Child Support (Assessment) Act 1989;

and this rule (other than subrule (4)) applies in relation to an agreement referred to in paragraph (ba), (c), (d), (da) or (e) as if it were an order of the court in which it is registered or taken to be registered.
…
(5) A matter to which this rule applies may be enforced by one or more of the following means:
(a)garnishment;
(b)seizure and sale of personal property
(c)sequestration of estate;
(d)sale of real property.

...
O33 rule3
(1)      If a person is alleged to have refused or failed to comply with an order or agreement to which rule 2 applies, the person who is entitled to the money payable under the order or agreement, or a person entitled to take proceedings for the purpose of enforcing the payment of those moneys, or the forfeiture of a recognizance, may file an affidavit requesting the issue of:
(a)      in relation to a debt due to the Commonwealth:
(i)a notice in accordance with Form 45A; or
(ii)a summons in accordance with Form 45B; or

(9) Where a person attends before, or is brought before, a court, the court may, on being satisfied that the person has refused or failed to comply with an order or agreement to which rule 2 applies, make such of the following orders as it thinks fit:
(a)an order for the payment of the arrears and any other unpaid portion of the moneys payable under the first-mentioned order or agreement;
(b)a garnishment order under rule 4;
(c)an order under rule 5 for the seizure and sale of personal property belonging to the person;
(d)an order under rule 6 that the estate of the person be sequestrated;
(e)an order under rule 7 for the sale of an interest in real property belonging to the person;
(f)such orders as it thinks necessary to enable enforcement of its orders or to prevent the dissipation of property or the wasting of assets."

The proposed Notice of Appeal does not address the point directly, but there appears to be significant confusion as to whether the Family Law Rules as presently drafted adequately provide for the availability of Order 33 remedies when seeking to enforce debts due to the Commonwealth under s 30 of the Child Support (Registration and Collection) Act 1988 where such debts have arisen by means of a registered administrative assessment. The Rules are clearly intended to cover such s 30 debts but those debts cannot be classified as "an order or agreement to which rule 2 applies".

In this application the applicant has focussed upon the dismissal of his Form 63 application seeking to challenge the validity of the various assessments, rather than on the enforcability of those assessments via the Family Law Rules. The operative order of Jordan J required the transfer by the applicant of funds standing to the credit of his company being no more than "a few hundred dollars". Absent any specific ground of appeal directly challenging the validity of the enforcement process, given the small sum involved and the acknowledged failure of the applicant to meet his substantial child support liabilities for several years, we are not satisfied that it would be appropriate to allow that point to succeed in this case. We do however suggest that those responsible for framing the Family Law Rules pay urgent attention to this possible deficiency in the Rules as presently drafted.

Ground 6 - a denial of natural justice

By his sixth ground the applicant asserts that the Part 6A process amounts to a denial of natural justice because it lacks the capacity for judicial review. In his written submissions in support of this assertion he says:

"…at no time am I able to be heard or to question how the Review Office reached the decisions and challenge the evidence and facts of the debt demand by the DCSR, by way of a Judicial Review. "

No authority is given in support of the proposition that a right to challenge the findings of a decision maker by way of judicial review is an essential element of the rules of natural justice.

The applicant appropriately cites Brennan J in Annetts & Anor v. McCann & Ors (1990) 170 CLR 596 where his Honour said:

"…the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates and confers the power. If it were otherwise, the common law would be asserting a jurisdiction to review an exercise of a power contrary to a statutory provision that gives effect to an exercise of the power by the authority in whom it is reposed when it is exercised in conformity with the statute. It follows that the statute, construed to include any terms supplied by the common law, must define the conditions governing the exercise of a statutory power by a statutory authority.”

The applicant then appropriately identifies the essential rule of natural justice that a party must be given a chance to be heard. He cites Taylor v Taylor(1979) 143 CLR 1 at 4:

"In Cameron v. Cole (1944) 68 CLR 571, at p 589 , Rich J. said: "It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case." Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395 , Dixon C.J. and Webb J. said that "it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard." (at p4)

He then asserts:

"What the Child Support Agency has sought was a default Judgment in the Family Law Court for Enforcement Orders, without Mr Hendy having the right to challenge that debt, Judicial Review (sic)."

This assertion demonstrates a fundamental misunderstanding of the processes involved in the creation and enforcement of the applicant's child support liability.

The debt was created in this case by a series of administrative processes set out in Parts 5 and 6A of the Act. The debt ultimately created by the Part 6A procedures was always open to challenge by the applicant under the Act Part 7 Division 2 (Declarations in relation to entitlement to administrative assessment), Division 3 (Appeals against incorrect assessments), and Division 4 (Orders for departure from administrative assessment in special circumstances). The Act lays down the basis upon which the person dissatisfied with the administrative process may make application to the Court. The process is set out either in ss 107, 110 or 116.

A departure order can be sought in respect to the administrative assessment as it finally issues if it can be established that a ground for departure exists.

Those processes are conducted in a court exercising jurisdiction under the Act, on proper notice, with ample opportunity to call such evidence as may be relevant and to challenge any opposing evidence.

There has been nothing shown that would have precluded the applicant from bringing an application in a court exercising jurisdiction under the Act seeking a appropriate relief in respect of the debts created as a result of the various determinations. There was no "default judgment" created. There have been ample opportunities for the applicant to challenge the sums assessed. There is nothing to indicate that he has availed himself of those opportunities. Rather it would appear that he has chosen to simply ignore his obligations to support his children.

As indicated, one of the essential elements of natural justice is that the party whose rights are to be affected by a decision maker has an opportunity to be heard. Prior to the amendments in late 1998 the procedure under Part 6A provided for one such opportunity to be heard. Since the amendments in December 1998 there are now two such opportunities to be heard. The provisions of Part 6A specifically require notification of the making of an application to the person against whom some relief is sought. That person is required to be advised that they have an opportunity to reply. The legislation specifically provides that the parties must be given an opportunity to appear and be heard (s 98H).

Since the coming into force of the amendments in December 1998, a person aggrieved by a decision to make a departure determination under Part 6A has a right of objection. All of the essential elements of the rules of natural justice that provide the applicant to these proceedings with a right to be heard are present in the legislation.

There appears to be no merit in the application that somehow the departure determination process conducted under Part 6A is in breach of the rules of natural justice.

Costs appeal

The learned trial Judge ordered the applicant to pay 40% of the DCSR's costs as agreed or taxed. The applicant seeks to appeal that order. The arguments advanced in support of the appeal are difficult to understand. They again seem to indicate a fundamental misunderstanding of the law.

There were two distinct proceedings before Jordan J:

· There was an Enforcement Summons brought by the DCSR against the applicant seeking to enforce the debt it asserted was owing to the Commonwealth by the applicant arising out of his failure to pay the assessed child support. Such an application is brought under the provisions of Order 33 of the Family Law Rules, which Rules are made pursuant to the power expressly given in s 109A of the Family Law Act 1975. The hearing and determination of such a summons is clearly a proceeding under the Family Law Act.

· The other proceeding was the determination of the application filed by the applicant on a Form 63 application seeking declarations that the child support assessments were invalid. That application purported to be brought "under Division 4 of Part 7, Part 8 or Part 5 of the Child Support (Assessment) Act 1989."

Section 100 of the Act provides:

“(1) The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:
(a)the proceedings were proceedings under Part VII of that Act; and
(b)the proceedings were proceedings instituted under Part VII of that Act; and
(c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
(d)a decree made in the proceedings were a decree made under Part VII of that Act; and
(e)matters arising in the proceedings were matters arising under Part VII of that Act; and
(f)any other necessary changes were made.

…"

The power to award costs in proceedings under the Family Law Act 1975 and the circumstances in which costs orders may be made is governed by s 117 of that Act. It provides:

“(1) Subject to subsection (2) and sections 117AA and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.”

Jordan J identified the following matters as relevant to the exercise of his discretion on the costs issue:

Mr Hendy was unsuccessful in his Form 63 application.

There was a debt owing to the Commonwealth; the Commonwealth was entitled to bring enforcement proceedings.

The Agency was only partly successful in securing the remedies sought.

The Form 63 application was entirely unsuccessful

Mr Hendy was currently in very poor financial circumstances.

It could well be argued that the proceedings were necessitated by the failure of the respondent to comply with previous requirements relating to administrative assessments, "although I note that sub-paragraph (d) refers to previous orders of this Court".

These proceedings should be more properly perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen, rather than as between parties to a marriage or parties to a relationship covered by the general philosophy of the Family Law Act, which is to the effect that each party should bear their own costs.

These are enforcement proceedings

Costs orders are frequently made in the civil arena when there is no apparent immediate capacity to meet the orders for costs and the parties.

It would be inappropriate if the taxpayer was required to bear the entire burden of this exercise.

His Honour concluded:

"65Finding a balance between all of those competing considerations, I have determined that I should further order that the respondent pay 40 per cent of the applicant's costs of and incidental to these proceedings, such costs as agreed and, failing agreement, as taxed."

The limited circumstances in which an appellate court may interfere with the exercise of a judicial discretion are well settled (see House v. The King (1936) 55 CLR 499). It is well established that a trial judge has a wide discretion to make an order for costs (see Penfold v Penfold (1980) FLC 90-800 at 75,054. We detect no error in the manner in which his Honour dealt with the costs issue.

Summary

We detect no error of principle in the approach taken by the learned trial Judge, nor do we conclude that the orders made cause substantial injustice to the applicant. In those circumstances, in so far as leave is necessary, the application for leave to appeal against the orders made by Jordan J on 7 August 2000 is dismissed. In so far as the appeal is brought as of a right, it being an appeal against orders made in the exercise of Family Law Act jurisdiction rather than Child Support (Assessment) Act jurisdiction, the appeal is dismissed.

Costs of the Application and the Appeal

In the event that the application and/or the appeal were unsuccessful the DCSR sought an order for costs as against the applicant. The mother of the children, who appeared in person, sought no order.

The applicant submitted that no order should be made having regard to his inability to meet it.

Given that this case has raised some significant issues, albeit unsuccessfully, and given the financial circumstances of the applicant, notwithstanding that he has been wholly unsuccessful, we think that a limited costs order should be made in favour of the Deputy Registrar. We propose to order that the applicant pay $2,500 towards the Deputy Registrar's costs.

Orders

The application for leave to appeal is refused.

The appeal, in so far as leave is not required, is dismissed.

The applicant must pay $2,500 towards the Deputy Child Support Registrar's costs of an incidental to the application and appeal.

I certify that the 121 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate

Application	Decision	Officer	Period of decision
1 5 Jan 1995	19 April 1995	Virginia Ryan	5 Jan 1995 to 30 June 1995
2 4 March 1996	20 Aug 1996	Judith Williams	1 July 1995 to 30 June 1997
3 25 June 1997	11 Nov 1997	Kaarina Ammala	3 Sept 1997 to 30 June 1999
4 16 June 1999	16 Aug 1999	Bruce Doyle	1 July 1999 to 31 December 2001