Hirota & Meissner

Case [2024] FedCFamC1A 91

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 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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:

  1. 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

  2. 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.

  3. The applicant’s central complaint is that his child support assessment did not take account of the…

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AGLC
Hirota & Meissner [2024] FedCFamC1A 91
Case
[2024] FedCFamC1A 91
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Hirota, sought leave to appeal against orders dismissing his application for variation of a child support assessment. The matter involves the assessment of child support for a 14-year-old child, with the mother having 100% care. Mr. Hirota has additional children with his current wife, who reside overseas. He contends that the child support assessment did not account for the financial support he provides to his wife and children overseas, amounting to approximately $24,000 annually. This case has a lengthy procedural history, with previous attempts to vary the assessment being unsuccessful through administrative and tribunal processes.

The legal issues before the court included whether the applicant could argue against the Administrative Appeals Tribunal's (AAT) decision, whether the court had the power to review the AAT's decision in the present proceedings, and whether the primary judge correctly interpreted sections 111 and 112 of the Child Support (Assessment) Act. The court found that the applicant's arguments concerning the AAT's decision were without merit as the primary judge had no power to review it. Additionally, the court noted that the applicant's previous application before the court was dismissed, and thus, the reasons for that judgment were not subject to the current appeal. The court also concluded that the primary judge correctly interpreted the statutory provisions concerning time limits for departure applications and the discretion to permit such applications.

The court determined that the applicant's application for leave to appeal was without merit. The court dismissed the appeal, emphasizing that the time limit in section 111 of the Child Support (Assessment) Act was intended to prevent the indefinite re-examination of past assessments, which could undermine the integrity of the child support system. The court found no error in the primary judge's interpretation of the relevant sections and upheld the dismissal of the applicant's application for variation of the child support assessment. Consequently, the appeal was dismissed, and the application for leave to appeal was refused.

The court's order reflects its determination to uphold the dismissal of the applicant's application for variation of the child support assessment. The appeal was dismissed, and the application for leave to appeal was refused, finalizing the matter.

Orders

Orders of the court

NAA 33 of 2024

SYC 6440 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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