Hirota & Meissner
[2024] FedCFamC1A 91
•29 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hirota & Meissner [2024] FedCFamC1A 91
Appeal from: Hirota & Meissner [2024] FedCFamC2F 197 Appeal number(s): NAA 33 of 2024 File number(s): SYC 6440 of 2023 Judgment of: RIETHMULLER J Date of judgment: 29 May 2024 Catchwords: FAMILY LAW – APPEAL – CHILD SUPPORT – Extensive procedural history – Where applicant seeks leave to vary administrative assessment of child support after time limit expired – Where applicant disputes administrative assessment of child support previously – Operation of time limit in s 111 where departure application previously pursued with time – Appeal dismissed. Legislation: Child Support Assessment Act 1989 (Cth) ss 77, 98B, 98S, 111, 112(4), 116, 117, 117(2)(a), 118, 143
Child Support (Registration and Collection) Act 1988 (Cth) s 30
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(a)
Cases cited: Bauer v Becker (2009) FLC 98-042; [2009] FMCAfam 480
Hirota & Child Support Registrar [2023] FedCFamC2F 550
Medlow & Medlow (2016) FLC 93-692; [2016] FamCFAFC 34
Number of paragraphs: 38 Date of hearing: 21 May 2024 Place: Parramatta Counsel for the Applicant: Litigant in person Counsel for the Respondent: Did not participate ORDERS
NAA 33 of 2024
SYC 6440 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HIROTA
Applicant
AND: MS MEISSNER
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
29 MAY 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal be refused.
2.Appeal NAA 33 of 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hirota & Meissner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The applicant seeks leave to appeal against orders dismissing his application for variation of a child support assessment and recovery of the overpayment that would arise following the variations sought.
BACKGROUND
The applicant and the respondent have one child together who is aged 14. The mother has 100% care of the child. The applicant has four children with his current wife, who live in overseas. The applicant was assessed to pay child support of $7,737 per annum for the child with the respondent.
The applicant’s central complaint is that his child support assessment did not take account of the support that he provides to his wife and children (his wife and eldest child not having visas to enter Australia) for whom he “sends about $24,000 per annum” (including $2,500 for school fees, to which the tribunal found the applicant’s duty to his children did not “extend”).
The history of the matter is outlined in Hirota & Child Support Registrar [2023] FedCFamC2F 550, when the applicant had previously sought orders to vary the child support assessment.
On 23 January 2020, the mother registered the child support assessment for collection by Services Australia.
The applicant’s first attempt to vary the child support assessment was made in 2020:
(a)On 16 February 2020, the applicant made a departure application for an administrative change to the child support assessment, which was refused on 22 April 2020.
(b)On 30 April 2020, the applicant objected to the refusal decision. The objection was disallowed on 4 June 2020.
(c)On 23 June 2020, the applicant applied to the Administrative Appeals Tribunal for a review of the decision, however, the AAT affirmed the decision on 18 November 2020.
The Administrative Appeals Tribunal found that the applicant had a “net income, after tax, of $61,813 per annum” (at [24]) and accepted his listed expenses of $31,279 per annum in his departure application (at [25]), concluding that this left him with a disposable income of $30,534 per annum from which to pay his child support assessment of $7,737 per annum. The AAT then found that “If [the applicant] is required to spend $21,500 per annum to satisfy his duty to support his family [overseas], it leaves [the applicant] with over $9,000 per annum from which he can satisfy his child support liability, currently $7,737 per annum”: see [29]. The AAT concluded that the tribunal “was not persuaded that [the applicant’s] necessary expenses, to support himself and satisfy his duty to support his family [overseas], significantly reduces his capacity to provide financial support for his oldest child” at [30].
The applicant’s complaint about the outcome can be seen from a comparison of the child support that would be payable if both mothers sought a child support assessment or if the children overseas were living with the applicant: on both of these scenarios the administrative assessment would be several thousand dollars less per annum. This gave rise to an argument that the AAT misconstrued the legislative test of whether “the capacity of [the applicant] to provide financial support for the child is significantly reduced because of” his obligations to his wife and children overseas (see s 117(2)(a) of the Child Support (Assessment) Act 1989 (Cth)) due to the AAT simply considering whether it was possible (from an accounting perspective) for the applicant to meet the child support assessment in light of his other obligations, rather than whether the payment of over $20,000 per annum from a net income of around $60,000 demonstrated a significant reduction in his capacity to pay child support. However, it does not appear that the applicant, who was unrepresented, was able to articulate the argument with clarity.
The applicant appealed against the AAT decision to the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) in proceedings SYG 2787 of 2020. On 15 March 2021, the applicant lodged an Amended Notice of Appeal against the decision of the AAT which was struck out by a judge on 15 April 2021. The applicant did not lodge an appeal against the orders of that judge. As a result, the issue must be considered to have been finalised.
On 23 May 2022 the applicant lodged a second application for a departure determination, which was also refused.
On 5 June 2022 the applicant made a third application for a departure determination which was refused on 27 July 2022. He lodged an objection to the refusal with the agency on 12 August 2022, which was disallowed on 28 October 2022. The applicant did not seek a review of this objection decision by the Administrative Appeals Tribunal.
On 12 January 2023, the applicant amended proceedings that were pending in the Federal Circuit Court of Australia (originally filed to obtain stay orders) to include an application for orders varying his child support assessment. The amended application was dismissed on 12 May 2023 by a judge who found that there were no other pending proceedings (within the meaning of s 116 of the Child Support (Assessment) Act) and that as a result, there was no jurisdiction to make an order varying the administrative assessment. Consequently, the applicant’s application for recovery of child support pursuant to s 143 of the Child Support (Assessment) Act also failed and the stay orders were discharged.
As the child support assessment was partially stayed during these periods, a child support debt accrued. The Agency then enforced the debt against the applicant’s tax refunds after the stay was discharged.
In the proceedings the subject of this appeal the applicant sought:
(a)Recovery of $5,556.83 from the respondent pursuant to s 143 of the Child Support (Assessment) Act (recovery of overpaid child support);
(b)Leave pursuant to s 111 of the Child Support (Assessment) Act to apply to depart from the administrative assessment of child support which was for days more than 18 months before the date of the application; and
(c)Variation of the administrative assessment by the court, rather than utilising the administrative process to seek a change in the child support assessment (seeking leave pursuant to ss 112 and 116 of the Child Support (Assessment) Act).
Whilst the first order sought by the applicant was to recover child support from the respondent pursuant to s 143 of the Child Support (Assessment) Act, this could only succeed if he was successful in having the child support assessments varied so as to result in him having overpaid his child support liability. The applicant had been unsuccessful in this regard in the various separate attempts outlined above.
The primary judge declined to grant the applicant leave to challenge assessments for days more than 18 months before the application, which the applicant had unsuccessfully challenged on many previous occasions. Thus, the primary judge refused to hear and determine an application to vary the child support assessment pursuant to s 118 of the Child Support (Assessment) Act. As the assessments were not varied there was no overpayment that could be recovered by the applicant pursuant to s 143.
LEAVE TO APPEAL
Section 28(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) requires the applicant to obtain leave to appeal a decision of the Federal Circuit and Family Court of Australia (Division 2) when the court is exercising original jurisdiction under the Child Support (Assessment) Act or the Child Support (Registration and Collection) Act 1988 (Cth).
The test for leave to appeal, as set out in Medlow & Medlow (2016) FLC 93-692 at [46], is whether:
… in all of the circumstances of the case, the decision is attended by sufficient doubt as to warrant it being reconsidered … and whether substantial injustice would result if leave were refused supposing the decision to be wrong…
(emphasis in original)
GROUNDS OF APPEAL
The applicant set out submissions in his Notice of Appeal, rather than specific grounds of appeal. Paragraphs 1 to 6 of the grounds of appeal simply state background information. In paragraphs 7 to 12 the applicant set out that he does not accept the decisions that have been made concerning his child support assessment, that he challenges the child support decisions and the decision of the AAT, and ultimately arguing:
12. Therefore, I say [the mother] was not entitled to be paid the amount of 5,556.83 due to a wrong decisions made by two senior Child Support decision makers, more details of the facts and circumstances are set out in my affidavit filed on 31 August 2023.
The primary judge’s reasons were given ex tempore. The reasons were provided in writing prior to the date that the Summary of Argument was due and were addressed by the applicant in his Summary of Argument.
As the applicant (who was unrepresented) has not clearly identified grounds of appeal in either his Notice of Appeal or his Summary of Argument, it is necessary to identify the grounds from his Summary of Argument and oral submissions. I have taken the headings in his Summary of Argument as representing the grounds the applicant argues and used them as headings in this judgment.
“Child Support (Assessment) ACT 1989 - SECT 143”
This part of the Summary of Argument appears to take up Ground 12 of the Notice of Appeal. The applicant argues at [5] in his Summary of Argument that the primary judge erred in refusing to make orders for the applicant to recover child support from the respondent on the ground that the primary judge “has not provided any legal basis for which he believes I was required to pay the amount I seek to recover from the defendant”.
There is no dispute that there are child support assessments that created the relevant debt. In these circumstances, the debt was due and owing as a debt to the Commonwealth pursuant to s 30 of the Child Support (Registration and Collection) Act 1989 (Cth), as s 77 of the Child Support (Assessment) Act creates a liability to pay the amount assessed by the registrar. There is no reason to doubt the correctness of the primary judge’s finding that:
[9] [The applicant's] opinions or beliefs about the decisions do not result in him not being liable to pay child support as has been assessed by the Child Support Registrar. The decisions about which he complains were unsuccessfully reviewed by him on several occasions, including through an appeal to this Court.
[10] [The applicant's] liability to pay child support having been clearly established, his application pursuant to section 143 of the Act is misconceived and will be dismissed.
This ground is without merit.
“WHY I BELIVE AAT DECISION WAS UNFAIR”
In his submissions under this heading the applicant sets out his arguments as to why he disputes the decision of the AAT with respect to his application to depart from the administrative assessment of child support. The application before the primary judge was not an appeal from the decision of the AAT. The applicant’s appeal against the AAT decision was struck out in earlier proceedings before a previous judge.
There was no power for the primary judge to review the AAT decision in the present proceedings. Thus, the arguments concerning the AAT decision under this heading are without merit. The arguments concerning the court refusing to vary the relevant assessments pursuant to s 118 of the Child Support (Assessment) Act are dealt with below.
“PREVIOUSE APPLICATION BEFORE THIS HONOURABLE COURT”
The applicant addresses arguments to the correctness of the reasons for judgment of another judge, when dismissing an earlier application that he made with respect to child support. The decision of another judge is not the subject of this appeal.
This ground is therefore without merit.
“Child Support (Assessment) ACT 1989 - SECT 111”
The third heading in the Summary of Argument argues that the primary judge erred in his interpretation of ss 111 and 112 of the Child Support (Assessment) Act.
Section 111 places a time limit upon applications for departure determinations for days more than 18 months before the application: see s 111(1). The section also provides the court with a discretion to permit departure applications with respect to child support payable for days more than 18 months, but less than 7 years, before an application, as follows:
111 Application for amendment of administrative assessment that is more than 18 months old Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
As was explained by a federal magistrate (as their Honour was then) in Bauer v Becker (2009) FLC 98‑042, the objective of s 111 is to “prevent the re-examination of past assessments of child support for unlimited periods of time” because it would effectively “undermine the integrity of the overall system”: at [74] – [75].
The relevant considerations for deciding whether to grant leave are set out in s 112(4) and (5) of the Child Support (Assessment) Act as follows:
112 Court may grant leave to amend administrative assessment that is more than 18 months old
…
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
The applicant said in his Summary of Argument:
30. I say, the meaning of subsection 112(4) of the Act regarding delays does not apply to my case since I made an application under section 98B and the assessment subject to my proposed order number 2 and 3 is more than 18 months but less than 7 years.
At the hearing, the applicant argued that because he brought a departure application pursuant to Part 6A of the Child Support (Assessment) Act (which contains s 98B), which has since been dismissed, that he is no longer required to obtain leave pursuant to s 111 of the Child Support (Assessment) Act to bring another departure application.
The requirement for leave in s 111 applies to any departure application concerning a child support assessment for a day more than 18 months prior to making the particular departure application. The fact that the applicant brought a departure application within the time limit (which has since been finalised) does not result in the requirement for leave under s 111 no longer applying to a subsequent application for departure commenced after the time limit. As s 111 applies, the primary judge was required to consider the matters listed in s 112(4).
In this case the applicant has made numerous attempts to alter the child support assessment. The amount involved is $7,737. It is unsurprising that the primary judge refused leave to bring another application to attempt to depart from the relevant child support assessment.
This argument is without merit.
CONCLUSION
As none of the applicant’s arguments show that the decision of the primary judge was “attended by sufficient doubt to warrant it being reconsidered”, the application for leave to appeal must be refused and the appeal dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 29 May 2024
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