Hunter & Child Support Registrar
[2017] FamCAFC 259
•30 November 2017
FAMILY COURT OF AUSTRALIA
| HUNTER & CHILD SUPPORT REGISTRAR | [2017] FamCAFC 259 |
| FAMILY LAW – LEAVE TO APPEAL – CHILD SUPPORT – where the Child Support Registrar sought to enforce a child support debt against the appellant – where a departure prohibition order had been made preventing the appellant’s departure from Australia – where the appellant responded to the enforcement application by challenging the validity of the child support debt – where the appellant asserted the enforcement application was erroneously commenced by Application in a Case – where the appellant contended that the certificate relied upon by the Child Support Registrar pursuant to s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) was invalid – where the appellant contended that he was denied procedural fairness by the primary judge refusing his application for leave to issue a subpoena – where the appellant contended that the Child Support Registrar’s use of his tax file number was unauthorised – where the appellant contended that the Child Support Registrar was required to strictly prove delegations of power – where no error demonstrated – appeal dismissed. FAMILY LAW – LEAVE TO APPEAL – CHILD SUPPORT – CONSTITUTIONAL VALIDITY – where the appellant contended that the Child Support Scheme was unconstitutional – Luton v Lessels (2002) 210 CLR 333 – where the appellant contended that the child support debt liability was contrary to s 55 of the Constitution in circumstances where it imposed a tax – where the appellant contended that s 202(ga) of the Income Tax Assessment Act 1936 (Cth), being a provision which permits the exchange of information between government agencies, was unconstitutional as it was contained in legislation which imposed a tax – where the appellant contended that child support amounted to a “forced exaction on other than just terms” contrary to s 51(xxxi) of the Australian Constitution – where the appellant’s arguments are not made out – where appeal dismissed. |
| Australian Constitution ss 51(xxxi), 55 Child Support (Assessment) Act 1989 (Cth) ss 4, 150D Child Support (Registration and Collection Act) 1988 (Cth) ss 3, 72D, 72I, 72Q, 72T, 107A, 116 Federal Court of Australia Act 1976 (Cth) s 24 Explanatory Memorandum, Child Support Legislation Amendment Bill (No 2) 2000 Family Law Rules 2004 (Cth) r 22.09 |
| CDJ v VAJ (1998) 197 CLR 172 Child Support Registrar & Crabbeand Anor (2014) FLC 98-062 Luton v Lessels (2002) 210 CLR 333 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Re Dymond (1959) 101 CLR 11 Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 Whittaker v Child Support Registrar [2002] FCA 1430 |
| APPELLANT: | Mr Hunter |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | ADC | 2050 | of | 2015 |
| APPEAL NUMBER: | SOA | 11 | of | 2016 |
| DATE DELIVERED: | 30 November 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Kent & Watts JJ |
| HEARING DATE: | 23 February 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 February 2016 |
| LOWER COURT MNC: | [2016] FCCA 144 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Lenehan |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
The application for leave to appeal the orders made by Judge Cole on 9 February 2016, as amended on 29 February 2016, is dismissed.
Mr Hunter pay the costs of the Child Support Registrar of and incidental to the appeal proceedings in the sum agreed or, failing agreement, as assessed within thirty (30) days of the sum being agreed or assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Child Support Registrar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 11 of 2016
File Number: ADC 2050 of 2015
| Mr Hunter |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
Mr Hunter applies pursuant to s 107A of the Child Support (Registration and Collection Act) 1988 (Cth) (“the Collection Act”) for leave to appeal and, if leave is granted, to appeal from orders made by Judge Cole in the Federal Circuit Court of Australia on 9 February 2016, as amended on 29 February 2016.
By those orders it was declared that Mr Hunter owes the Commonwealth of Australia the amount of $40,031.94 in respect of arrears of child support and late payment penalties as at 16 November 2015 (“the child support debt”), as evidenced by a certificate issued pursuant to s 116(2) of the Collection Act. Mr Hunter was ordered to pay the child support debt, together with ordered costs to the Child Support Registrar (“the Registrar”) within 60 days. Further orders, directed to securing Mr Hunter’s compliance were made including, inter alia, injunctions restraining Mr Hunter from dealing with his real and personal property pending his compliance.
The orders were made in what are conveniently described as debt recovery proceedings pursuant to s 113 of the Collection Act brought by the Registrar.
Well prior to, and discrete from, the debt recovery proceedings instituted on 19 June 2015, a Departure Prohibition Order (“DPO”) pursuant to s 72D of the Collection Act directed to Mr Hunter had been made by the Registrar, on 20 February 2014. As will be discussed, in responding to the debt recovery proceedings Mr Hunter purported to challenge the DPO, and the primary judge’s rejection of those challenges is sought to form part of Mr Hunter’s challenges in these appeal proceedings.
Mr Hunter’s application for leave to appeal, and the appeal if leave is granted, are opposed by the Registrar. Upon the hearing we entertained in conjunction the arguments of each party directed to the application for leave and the appeal itself if leave was granted.
The application and central issues below
On 19 June 2015, the Registrar filed an application in a case and affidavit pursuant to r 25B.09 of the Federal Circuit Court Rules 2001 (Cth) seeking that Mr Hunter pay his arrears of child support and that he be restrained from dealing with certain property pending him meeting this obligation. The Registrar relied upon a certificate produced pursuant to s 116(2) of the Collection Act as prima facie evidence of the debt owing by Mr Hunter to the Commonwealth (“the statutory certificate”).
Mr Hunter resisted the application on a number of bases. He contended that the court ought to declare “[Mr Hunter] does not have a child support liability or in the alternative, the said liability is nil”. He asserted there were various irregularities in the proceedings which ought to result in their dismissal or findings adverse to the Registrar, including:
a)That the proceedings were improperly commenced by way of application in a case (and should properly have been commenced by application or summons) and therefore should have been struck out;
b)That the statutory certificate relied upon by the Registrar was unlawful or invalid;
c)That the Registrar’s use of his tax file number in determining and assessing his child support liability was unauthorised and that a declaration ought to be made to that effect; and
d)In the absence of the Registrar establishing that proper delegations existed, any and all information obtained by persons within the relevant government department who purported to act on the authority of the Registrar be excluded for being improperly or illegally obtained.
By his response document, Mr Hunter also sought to agitate matters in respect of a DPO made by the Registrar on 20 February 2014. He sought, “to the extent necessary, leave … to litigate the validity of the said [DPO]”, to have it discharged or stayed and to restrain the Commonwealth from issuing further DPOs in respect of him. He also sought various findings and declarations in respect of those persons within the Child Support Registry who issued the DPO that their conduct constituted “misfeasance of public office”.
The child support liability
The legislative scheme established by the Commonwealth for the assessment and collection of child support has been the subject of discussion in numerous cases by this Court; (see for example Child Support Registrar & Crabbeand Anor (2014) FLC 98-062) the Full Court of the Federal Court (see for example, Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 (“Davis”)) and the High Court of Australia (Luton v Lessels (2002) 210 CLR 333 (“Luton”)). In Davis (supra) the Full Court of the Federal Court (Keane CJ, Besanko and Perram JJ) provided the following helpful summary at [2]:
The laws of the Commonwealth attach significance to the obligation of separated parents of children to provide for their proper financial support. The important features of these laws are a set of provisions by which the liability of parents to pay child support is assessed and another set by which the payments thus assessed to be due are collected. The amount of child support payable by a parent to the child’s carer is assessed by the Child Support Registrar, a Commonwealth office established under s 10 of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act). The Registrar is empowered, on application by a child’s carer, to assess the liability of a parent to pay child support and the process of assessment bears similarities to the way in which income tax is assessed. Once assessed the parent must pay the amount of child support to the child’s carer in accordance with the assessment (s 31 of the Child Support (Assessment) Act 1989 (Cth)). A carer may choose to register the liability with the Registrar (s 25 Collection Act). Where this occurs the child’s carer is no longer entitled to enforce the child support obligation against the other parent and that obligation becomes, instead, a debt due by the parent to the Commonwealth (s 30 Collection Act). The carer becomes entitled to a payment from the Commonwealth in respect of whatever has been collected from the parent (s 76 Collection Act). To aid the efficacy of this régime the Registrar is equipped with ample powers to secure compliance with it. They include, by way of example, a power to sue in a court to obtain judgment for the child support amount (s 113 Collection Act); appurtenant powers to enforce any resulting judgment debt against the judgment debtor such as the levying of execution or the appointment of receivers (s 105 Collection Act and Chapter 20 of the Family Law Rules 2004 (Cth)); powers of garnishment by which those owing moneys to a person with child support obligations may be compelled to pay those moneys directly to the Registrar (s 72A); and, a power to prevent a person with such an obligation from leaving the country (s 72D).
In Luton (supra) the High Court considered, on a case stated, the scheme established by the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) and the Collection Act. The High Court were unanimous in the conclusions that, first, the scheme established by the two Acts did not provide for the imposition of a tax and, second, that in authorising the Registrar to make assessments and determinations and perform other acts in the collection of child support payments, the Acts did not vest the judicial power of the Commonwealth in the Registrar, contrary to Chapter III of the Commonwealth Constitution.
As referenced in the judgments in Luton the principal object of the Assessment Act (s 4) is to ensure that children receive a proper level of financial support from their parents. The principal objects of the Collection Act (s 3) include ensuring that children receive from their parents the financial support that the parents are liable to provide; and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.
Mr Hunter’s liability to pay child support for his son D (born September 1998) commenced as long ago as 15 March 2001.
Between that date and 10 October 2001 the liability was collected by the parents privately. The liability was registered for collection with the relevant Department on 11 October 2001 and from that date until 30 November 2003 was collected by the Department. The liability was again collected by the parents privately from 1 December 2003 until 2 November 2004. The liability was again registered for collection by the Department from 3 November 2004 and remained registered from that date.
Mr Hunter has never challenged his paternity of the subject child. At no time after the liability commenced on 15 March 2001 did Mr Hunter seek to depart from, or vary, any administrative assessment of child support over the ensuing period of about 15 years up until the Registrar commenced the proceedings in the Federal Circuit Court. At no time in the subject period did Mr Hunter contend that he was unaware of the existence of assessments from time to time throughout that period, nor in the proceedings below did he challenge the Registrar’s evidence that he was provided, each month, with a Payee Transaction Statement listing credits and debits and the account balance.
Between October 2001 and 2 August 2012 Mr Hunter paid assessed child support, albeit on occasions late, including by direct deductions from his salary and including late payment penalties.
Issues on appeal
Mr Hunter initially filed a notice of appeal on 29 February 2016. On 1 September 2016 he filed what purports to be an amended notice of appeal, although not in the correct form. That document includes 13 grounds of appeal and a further 13 grounds in support of his application for leave, but which also contain assertions as to error. By that document Mr Hunter seeks orders that the primary judge’s orders and the DPO be set aside.
On 8 February 2017, Mr Hunter filed a document which purports to be a further amended notice of appeal, although again not in the correct form. We record that pursuant to r 22.09 of the Family Law Rules 2004 (Cth) (“the Rules”) an appellant may amend a notice of appeal without leave up to the date fixed for the filing of the appellant’s summary of argument. In this instance that date was 1 September 2016.
On 22 February 2017, that is, the day before the hearing of the appeal, Mr Hunter sought to file the further amended notice of appeal in substance as it was filed on 8 February 2017 but incorporated into the proper form. For reasons delivered extemporaneously on the hearing of the appeal, Mr Hunter was granted leave to rely upon the further amended notice of appeal, notwithstanding the lateness of the amendments.
The major amendment was the addition of Grounds 14 and 15 raising constitutional challenges, as discussed below.
It was exceedingly difficult in advance of the hearing to identify with precision the issues Mr Hunter, who represented himself, sought to agitate specific to his application for leave to appeal and his appeal itself, given the content of his respective notices of appeal. There is a degree of overlap between stated grounds for leave and the grounds of appeal. A number of the grounds of appeal as stated contain bare assertions so lacking in particularity that it is not possible to discern the complaint. With all due respect to him, this position was not greatly improved by the oral arguments of Mr Hunter on the hearing. We proceeded on the basis that each party would address us on both the application for leave and the appeal itself concurrently. In some respects Mr Hunter’s summary of argument and his oral arguments were not readily referable to any ground of leave or of appeal and, conversely, some grounds appeared not to have been addressed at all.
Whilst Mr Hunter was represented by counsel in the proceeding before the Federal Circuit Court, he represented himself at the hearing before us and we have therefore determined to adopt the most expansive interpretation reasonably open of the issues Mr Hunter sought to agitate before us.
Doing the best we can, it would seem that Mr Hunter seeks to challenge the primary judge’s orders on the following bases:
a)That the primary judge should have required the Registrar to produce the documents sought by him under subpoena; that failing to do so placed him in the untenable position of being unable to lead evidence to rebut the statutory presumption created by the statutory certificate, thereby amounting to a denial of natural justice and that it was not open to his Honour to find that “there were means other than by compliance with a subpoena for the respondent below to challenge the validity of the liability the subject of the s 116(2) certificate” (Grounds 1, 3, 4, 6, and 8); and
b)That his Honour erred in his construction of the statutory certificate; that his Honour should not have “determin[ed] the liability” owed by Mr Hunter to the Commonwealth in reliance upon the certificate; and that his Honour should not have determined the certificate was validly issued (Grounds 2, 5 and 5A); and
c)That his Honour erred in refusing to strike out the Registrar’s application for having been commenced by way of application in a case rather than initiating application (Ground 7); and
d)That his Honour demonstrated “a reasonable apprehension of bias apparent in the manner in which his Honour conducted himself during the hearing in respect to whether or not the respondent below was a taxpayer and or had a taxable income and in subsequently finding the respondent below was a taxpayer and or had a taxable income” (Ground 10); and
e)That his Honour erred in finding that Mr Hunter was a tax payer (Ground 9); and
f)That his Honour improperly construed the DPO; either by “fail[ing] to comprehend the incorrectness of the DPO” or “in the construction and application of the power exercised to issue the departure prohibition order against the Appellant” (Grounds 12 and 13);
g)That his Honour’s discretion miscarried (Ground 11); and
h)That his Honour erred in failing to find that the relevant child support liability was contrary to the Constitution in the following manner (Grounds 14 and 15):
i)Contrary to s 55 of the Constitution, imposing a tax; and/or
ii)Contrary to s 55 of the Constitution, s 202(ga) of the Income Tax Assessment Act 1936 (Cth), being a provision which permits the exchange of information (specifically a tax file number) between government agencies being contained within an Act which imposes a tax; and/or
iii)Contrary to s 51(xxxi) of the Constitution, amounting to a “forced exaction on other than just terms”.
As Mr Hunter’s grounds of appeal encapsulate the grounds advanced in support of his application for the grant of leave to appeal, and consideration of the merits of the appeal is relevant to the discretion as to leave being granted, we will address the grounds of appeal.
We note that when objection was taken by the Registrar to reliance upon the further amended notice of appeal, Mr Hunter contended that Grounds 5A and 5B were merely intended to be an elucidation of Ground 2 and as such were not pressed independently.
When further regard is had to the summary of argument filed on behalf of Mr Hunter, and while no particular ground of appeal is directed to this in any of the amended iterations of his notice of appeal, Mr Hunter also clearly seeks to agitate before us issues in respect of his Honour’s determination to admit evidence, contrary to his counsel’s objection.
At the hearing of the appeal we refused an oral application by Mr Hunter for leave to adduce further evidence. At the time of the hearing we indicated we would deliver reasons for that refusal as part of these reasons. We therefore propose to firstly provide those reasons; then deal with the constitutional issues Mr Hunter seeks to agitate; and finally discuss the balance of the issues raised.
Application for leave to adduce further evidence – subpoena issue (Grounds 4 and 5)
As part of Mr Hunter’s resistance in the debt recovery proceedings, he attempted to have those proceedings adjourned pending the Registrar’s compliance with a subpoena Mr Hunter had caused to be issued directed to the Registrar. The Registrar’s objection to the subpoena on the grounds that it amounted to a “fishing expedition” and was vague and oppressive was upheld by the primary judge and the adjournment was refused.
The factual context in which the primary judge dealt with the subpoena, as earlier outlined, is important. We reiterate that, Mr Hunter’s liability to pay child support arose long ago, on 15 March 2001. Mr Hunter had never challenged any of the numerous assessments issued over the ensuing period of some 15 years. Nor, as we have earlier noted, did Mr Hunter ever seek to depart from, or vary, any administrative assessment of child support.
Indeed in the course of the hearing below the primary judge took up with counsel for Mr Hunter whether an adjournment was sought for the purpose of a departure application. Mr Hunter by his counsel disavowed that.
Against that background, the subpoena Mr Hunter caused to be issued to the Registrar nominated the production of “all documents and or information” relied upon by the Registrar starting with the initial application, made in 2001, for administrative assessment of child support (and all accompanying documents) and “all documents and or information” thereafter relied upon for essentially every aspect of any and all administrative assessments made, or any determinations as to, the child support payable by Mr Hunter over the period of about 15 years since the original assessment was made.
In the circumstances of this case it is difficult to conceive of a more widely drawn subpoena, unconfined as it was, to any specific or more limited period or periods, or more specific or limited categories of documents and “information” – whatever that term might actually mean or embrace. The documents and “information” sought by the subpoena were as follows:
(1)…
(2)All documents and or information that the applicant relied on, including the application for administrative assessment and any other documents accompanying that application, to form the basis of accepting that the original application for administrative assessment the subject of the enforcement proceeding was properly made under s 29 of the Child Support (Assessment) Act 1989 as the legislation stood at the relevant time.
(3)All documents and or information the applicant relied on, after deciding the original application for administrative assessment was properly made to determine that child support was payable by the respondent under s 31 of the Child Support (Assessment) Act 1989 as the legislation stood at the relevant time.
(4)All documents and or information that the applicant relied on, after deciding the original application for administrative assessment was properly made, to ascertain the respondent’s Child Support Income Amount under s 38 of the Child Support (Assessment) Act 1989 as the legislation stood at the relevant time.
(5)All documents the applicant relies on evidencing authorization to use any alleged Tax File Number in connection with the respondent’s identity, and to store and or maintain a record of the said number.
(6)Originals or copies of all documents including any electronic correspondence, file notes memorandums, reports, transaction records and or exchanges of information either received from or provided to the Commissioner of Taxation in respect to the respondent.
(7)Copies of all computer entries entered by or under the delegated authority of the Child Support Registrar into CUBA or any other computer software system used, maintained and or accessed by or under the delegated authority of the Child Support Registrar.
(8)All documents used or relied on evidencing jurisdiction to prepare submissions relating to the Departure Prohibition Order (DPO) in the Respondent’s name including but not limited to the following persons:
(9)The Applicant (Bill Volkers), the current Child Support Registrar, and any former Child Support Registrar since the commencement of the Alleged administrative assessment in respect to the respondent.
(10)The person known as [‘N’] (DPO Team Hobart) in preparation of a submission dated 20/2/2014 to take DPO enforcement action in respect to the Respondent.
(11)[Mr S] (delegate of the Child Support Registrar), to issue the Departure Prohibition Order 20th February 2014.
(12)[Mr I], (Improvement Manager – DPO DHS Child Support Perth) in preparation of a submission dated 16/4/2014 to refuse to revoke the said DPO.
(13)Copies of all delegations of all officers responsible for many any recommendation and or decision to ‘create’, issue, refuse to revoke the DPO in my name the Respondent
(14)Copies of all delegations for all officers responsible for creating and or amending any assessment in the name of the respondent.
(15)Copies of all delegations for any person authorised by the Registrar to make affidavits on the Registrar’s behalf.
As can be seen the subpoena extended, for example, to “copies of all delegations from all officers responsible for creating and or amending any assessment in the name of the Respondent [Mr Hunter]” (emphasis added).
In the hearing before us Mr Hunter conceded that the nature and extent of the subpoena directed to delegations was too wide. However, that was not a concession Mr Hunter made in the proceedings for the purpose of the primary judge determining the Registrar’s objection.
Pursuant to r 22.39 of the Rules an application for leave to adduce further evidence on appeal is to be made in the prescribed form 14 days prior to the commencement of the appeal sittings. This did not occur, and as earlier referred to, at the hearing of the appeal Mr Hunter made an oral application to adduce further evidence in the form of two paragraphs from an affidavit he said he had obtained from one Mr W, a litigant in other proceedings. The application was opposed by the Registrar.
The evidence sought to be adduced by Mr Hunter, it was asserted, was directed to the nature of the internal electronic case management system operated by the Registrar and the asserted ease with which any documents sought pursuant to subpoena could be produced: that is, challenging the finding of the primary judge that the subpoena issued to the Registrar was too onerous and vague. Mr Hunter asserted that the affidavit had only come into his possession a matter of days prior to the hearing and therefore was not available to him in the proceedings below.
The Registrar contended to the effect that there was no reason to suppose that this evidence would have led to a different result before the primary judge and would not in fact have the effect that was contended for by Mr Hunter; that irrespective of the existence of an electronic recording keeping system, to produce the documents sought under subpoena, those documents stored electronically would still need to be perused and their connection, or relevance to the documents sought, ascertained. Additionally, it was asserted that in the event that Mr Hunter had sought to lead evidence of this nature either before the primary judge or formally by the filing of an application in an appeal, that evidence could have been met by evidence the Registrar would rely upon to prove to the contrary.
Furthermore, the Registrar contended that this further evidence, even if admitted and accepted, was incapable of disturbing the finding of the primary judge that the subpoena amounted to a fishing expedition.
The principles relevant to the admission of further evidence are well known and need not be restated (CDJ v VAJ (1998) 197 CLR 172).
Plainly, the further evidence sought to be adduced was contentious and in any event we accept the submission of the Registrar that the further evidence could make no difference to the finding of the primary judge that the subpoena amounted to a “fishing expedition”. Against the background facts referred to, and the lack over a 15 year period of Mr Hunter making any complaint or challenge about issued assessments or the accuracy of the calculations; it can be seen that this was a “fishing expedition” raised for the first time at an enforcement stage of litigation.
We were not satisfied that the evidence sought to be adduced is of such relevance, nor that the weight which could legitimately be given to it, is such that its admission would have led to a different outcome on the primary judge upholding the objections to the subpoena (Sami v Minister for Immigration and Citizenship [2013] FCAFC 128, and CDJ v VAJ (supra)). That evidence could not support a conclusion that simply because there is in place an electronic system for record keeping the documents to which the subpoena was directed could easily be extracted. As counsel for the Registrar submitted, a manual process would be involved in extracting relevant documents not confined by the description “all documents” – nor confined by particular or specific time periods.
We accepted the Registrar’s submission that had such evidence been sought to be adduced below it would have been met by evidence as to the practical (manual) steps that would have had to be taken to address the subpoena. Moreover, and fundamentally, this evidence is incapable of addressing the conclusion that, as found by the primary judge, the subpoena was a fishing expedition without any legitimate forensic purpose. That conclusion was open to the primary judge on the evidence that was before him and, more particularly, the lack of any evidence advanced by Mr Hunter to provide any foundation at all for any question to be raised as to the correctness of historical assessments. For these reasons we refused Mr Hunter’s oral application at the hearing of the appeal.
In this context, several of Mr Hunter’s grounds for leave to appeal contained in his amended notice of appeal, specifically Grounds 1 to 4, 7 and 8, are directed to the fact that the primary judge upheld the Registrar’s objections to the subpoena. Grounds 4 and 5 of the appeal grounds are likewise directed to this issue.
For the same reasons there are no merits in any of these grounds. As a matter of practice and procedure it was within the primary judge’s discretion to determine that the content of the subpoena was vague and oppressive and that the subpoena was fishing.
In dealing with the subpoena and the Registrar’s objection the primary judge recorded at [67] to [71] as follows:
67.Without some evidence to challenge the conclusion that there is a prima facie case, the respondent’s position appears to be one of relying on strict proof, in the hope that the applicant has made a mistake.
68.I do not accept on the evidence before me that there has been an error in the steps taken by the applicant.
69.Without some evidence from the respondent I do not accept that he is entitled to seek compliance with the subpoena issued by him. On the evidence before me there is a strong case to argue that the information sought amounts to a fishing expedition and that the subpoena is in any event vague and oppressive.
70.I accept that the s.116(2) certificate provides prima facie evidence of the debt. I accept that the respondent’s affidavit does not provide anything to displace the prima facie evidence of the debt or support a contention that there is no child support debt or challenge to the accuracy of the debt.
71.In addition the respondent provides nothing to challenge the accuracy of the assessments or the certificates.
There is no discernible error in the primary judge’s reasoning.
The primary judge’s finding at [67] is quintessentially a contextual finding supporting the conclusion that the subpoena was fishing. As was observed by Wigney J in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587 (“Fitch”):
… A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small [1938] NSW St Rp 29; (1938) 38 SR NSW 564 at 574…
Plainly Mr Hunter was attempting by the subpoena to discover whether there were in fact any grounds for impugning the validity of the s 116 certificate. In these circumstances the primary judge made no error in concluding that there was a “strong case” for concluding that this was a fishing expedition.
As Wigney J also observed in Fitch there is a connection between a conclusion that a subpoena is a fishing expedition and the question of oppression. Wigney J observed (at [24]):
… A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if greater numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant…
Mr Hunter did not make any attempt in the proceedings below, after the bases for the Registrar’s objections to the subpoena were known by him, to modify or refine the request for documents so as to avoid the conclusion reached by the primary judge that the subpoena was oppressive and amounted to a fishing expedition.
We find no substance in these challenges to the primary judge’s determinations concerning the subpoena.
The constitutional challenges – Grounds 14 and 15
On 8 February 2017, along with his further amended notice of appeal, Mr Hunter filed a notice of constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth).
Pursuant to that section, the Court is not to proceed to determine the matter unless and until it is satisfied that the Commonwealth and State
Attorneys-General have been given notice of the matter and a reasonable time has elapsed since the giving of notice
On 17 February 2017 Mr Hunter filed an affidavit of service evidencing his service of the relevant s 78B notice on the State and Commonwealth
Attorneys-General. Subsequently, the Court was notified by way of correspondence that the Attorneys-General of each of Western Australia, Queensland, Tasmania, the Australian Capital Territory and the Commonwealth did not wish to intervene in the proceedings. We are additionally satisfied that the Attorneys-General of South Australia, Victoria, the Northern Territory and New South Wales have been provided a reasonable time within which to seek to intervene but have not done so. As such we are satisfied that sufficient notice has been given to proceed to determine the matter.
We will deal with each of the challenges mounted by Mr Hunter to the constitutional validity of the Child Support Scheme in the terms in which the challenges were argued before us by Mr Hunter.
That the Child Support Scheme in existence before the commencement of the Child Support Legislation Amendment Act2001 (Cth) imposes a tax, contrary to s 55 of the Constitution
Mr Hunter contends that the child support regime which existed prior to the commencement of the Child Support Legislation Amendment Act2001 (Cth) (“the Amending Act”) is contrary to s 55 of the Constitution as it imposes a tax, while also dealing with other matters.
Section 55 of the Constitution provides:
Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.
Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.
The first point to be noted about this challenge is that there is no evidence that the arrears of child support, the subject of these proceedings, or any part of those arrears, are referable to any period prior to the enactment of the Amending Act in 2001.
Indeed the evidence demonstrates the contrary. We have earlier referred to the history of this matter including the periods during which child support was collected privately by arrangement between the child’s parents. The “child support payer transaction statement for the period 15/3/2001 to 04/06/2015” was in evidence. Reference to that document discloses that, for example, as at 8 December 2003 and thus post-dating the Amending Act there was no amount due and owing by Mr Hunter for child support. At various times thereafter, for example during 2005 and 2006, Mr Hunter’s child support account was in credit.
This demonstrates that no part of the arrears of the accumulated child support debt the subject of these proceedings is referable to any period prior to the enactment of the Amending Act. The relevance then of a contention directed to the pre-2001 position is not apparent.
In addressing the constitutional issues he sought to raise, Mr Hunter acknowledged that in Luton the High Court of Australia settled in the negative the questions of whether the scheme established by the Assessment Act and the Collection Act was a tax; and whether those Acts involve an attempt to vest the judicial power of the Commonwealth in the Registrar.
The argument Mr Hunter mounted was to the effect that, accepting the correctness of Luton, legislative provisions “outside the scheme” (understood as meaning the scheme imposed by the Assessment Act and the Collection Act) facilitating that scheme were unconstitutional. That argument was advanced in conjunction with Mr Hunter’s contention that the Registrar obtaining Mr Hunter’s tax file number from the Commissioner of Taxation was “unauthorised”.
The first such legislative provision identified by Mr Hunter was the now repealed s 8WD of the Taxation Administration Act 1953 (Cth) (“the Tax Administration Act”). That section was repealed by the Amending Act. The relevance of the now repealed provision was contended by Mr Hunter to lie in the feature that it was in force when his liability for child support was first assessed to commence on 15 March 2001, prior to the repeal of that section on 30 June 2001. An associated contention was that the decision in Luton was delivered subsequent to the repeal of s 8WD.
The former s 8WD and, relevant to it, ss 8WA and 8WB which were the relevant law as at 30 June 2001, were in the following terms:
8WA Unauthorised requirement etc. that tax file number be quoted
(1) A person shall not require or request another person to quote the other person’s tax file number for the purpose of establishing the other person’s identity or for any other purpose, unless:
(a) provision is made by or under a taxation law or legislation described in paragraph 202(e) of the Income Tax Assessment Act 1936 for the person to quote the number;
(b) the first-mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202(c), (d), (g), (h), (ha), (hb), (hc), (i), (ia), (j), (m) or (n) of the Income Tax Assessment Act 1936; or
(c) the first-mentioned person requires or requests the number to be quoted in connection with the first-mentioned person acting on the other person’s behalf in the conduct of the other person's affairs.
Penalty: $10,000 or imprisonment for 2 years, or both.
(1A) A person does not contravene subsection (1) by asking another person to quote the other person’s tax file number if the request is made so that the number can be included in an application for the registration of an entity under the A New Tax System (Australian Business Number) Act 1999.
(2) Nothing in subsection (1) shall be read as prohibiting a person from requesting the production of a document, or a copy of a document, on which another person’s tax file number is recorded if the other person is not prevented from removing the tax file number from the document.
(3) For the purposes of this section, a person who makes to another person a statement that the other person could reasonably understand to mean that the other person is required or requested to quote the other person’s tax file number shall be taken to require or request the other person to quote the number.
(4) Nothing in this section shall be read as imposing on a person an obligation to require another person to quote a tax file number.
8WB Unauthorised recording etc. of tax file number
(1) A person shall not:
(a) record another person’s tax file number or maintain such a record;
(b) use another person’s tax file number in a manner connecting it with the other person's identity; or
(c) divulge or communicate another person’s tax file number to a third person;
other than:
(d) to the extent required or permitted by, or reasonably necessary in order to comply with an obligation imposed by, a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c) (d), (e), (g), (h), (ha), (hb), (hc), (i), (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936;
(e) in connection with the first-mentioned person exercising powers or performing functions under or in relation to a taxation law or a law of the Commonwealth of a kind referred to in paragraph 202(c) (d), (e), (g), (h), (ha), (hb), (hc), (i), (ia), (j), (ka), (m), (n) or (o) of the Income Tax Assessment Act 1936; or
(f) in connection with the first-mentioned person acting on the other person’s behalf in the conduct of the other person’s affairs.
Penalty: $10,000 or imprisonment for 2 years, or both.
(2) Without affecting any obligation imposed by or under a law of the Commonwealth other than this section, nothing in subsection (1) shall be read as imposing on a person an obligation to do an act referred to in paragraph (1)(a), (b) or (c).
…
8WD Application of Subdivision in relation to Child Support Acts
For the purposes of this Subdivision only, a reference to a taxation law shall be taken to include a reference to the Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989.
(Emphasis added)
It is apparent that up to 30 June 2001 the Collection Act was to be taken as a taxation law for the purposes of only that subdivision of the Tax Administration Act relating to the unauthorised use and recording of a person’s tax file number. It was not otherwise to be taken as a taxation law. Mr Hunter’s approach ignores that that is so.
The current s 8WA(1) of the Tax Administration Act which commenced after 30 June 2001 provides that a person must not require or request another person to quote the other person’s tax file number.
Subsection (1AA) provides that subsection (1) does not apply if:
…
(b)The first-mentioned person requires or requests the number to be quoted in connection with that person exercising powers or performing functions under, or in relation to, or complying with an obligation imposed by, a taxation law or a law of the Commonwealth of the kind referred to in paragraph 202… (ga) … of the Income Tax Assessment Act 1936.
Subsection 202(ga) of the Income Tax Assessment Act 1936 (Cth) which commenced after 30 June 2001 provides that the objects of that part of the Income Tax Assessment Act1936 (Cth) are, by means of the establishment of a system of file numbers:
(ga)To facilitate the administration of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988.
Also importantly Item 74 of Schedule 5 of the Amending Act has a saving provision in the following terms:
To avoid doubt, the validity of anything done by a Deputy Registrar before the commencement of this item is not affected by the amendments of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 made by this Schedule.
One of those amendments made by the Amending Act inserted s 150D into the Assessment Act. Subsection 150D(1) allows the Registrar to request a tax file number. Subsection 150D(2) places limits upon the use that can be made of a tax file number by a Registrar. One permissible use as specified in s 150D(2)(b) is “to make … an administrative assessment of child support”.
Page 11 of the Explanatory Memorandum of the Child Support Legislation Amendment Bill (No 2) 2000 states that s 8WD of the Tax Administration Act was being repealed because:
It is no longer appropriate that the Assessment Act and the Registration and Collection Act be regarded as “taxation laws”. However the effect of that repeal is that a person carrying out child support duties will no longer be exempt from offences contained in s 8WDA and 8 WB. To overcome this, those two sections are amended by the insertion into the Income Tax Assessment Act 1936 a new provision within s 202 (202(ga)). The secrecy and tax file number amendments are to ensure that the flow of information between the Child Support Agency and the Australian Taxation Office that is integral to the child support function continues to operate effectively.
Mr Hunter’s submissions that there was some fundamental change when s 8WD was repealed and replaced by s 202(ga) and s 150D(2) was inserted in the Assessment Act, is without foundation.
It can be seen that in Luton the High Court determined that the Child Support Scheme established by the Assessment Act and the Collection Act did not provide for the imposition of a tax. It provided a mechanism for the enforcement of an existing private obligation. The substitution of a new obligation owed by the payer to the Commonwealth, in place of an equivalent existing obligation owed by the payer to the carer, coupled with the creation of new rights to the carer against the Commonwealth measured by the extent to which the payer performed his or her obligations to it, took the compulsory exaction beyond the description of “taxation”. Thus the High Court held that no question as to invalidity by virtue of s 55 of the Commonwealth Constitution arose.
Central to Mr Hunter’s contentions is the proposition that the Income Tax Assessment Act 1936 (Cth) is a law imposing taxation. That proposition is unsustainable. As counsel for the respondent emphasised, a law will not necessarily be considered as imposing a tax even though it contains provisions relating to the imposition of the tax, for example, if it deals with the collection and recovery of taxes and the punishment of offenders. Although such matters are necessary for the effective imposition of tax, they are not regarded as actually imposing the tax. Counsel made reference to Re Dymond (1959) 101 CLR 11.
Luton stands as authority for the proposition that a law will not necessarily be considered as imposing a tax merely because it creates a debt owing to the Commonwealth. In Luton the Child Support Scheme was held not to be “laws imposing taxation” as it did not have either the purpose or effect of raising revenue for the Commonwealth; rather its purpose was to create and facilitate the enforcement of private rights and liabilities.
It is to be noted that in Luton the child support liability the subject of that case stated to the High Court was first registered in August 1993; that is, well before the commencement of the Amending Act. In this regard, the observations of Gaudron and Hayne JJ at [31] are to be noted:
The questions reserved are couched in the present tense and, therefore, invite attention to the Acts in the form in which they now stand. Since their enactment, both [Child Support (Assessment) and Child Support (Registration and Collection)] Acts have been amended several times but it was not submitted that anything turned on those amendments or on the particular form that the Acts took at the date of the various events described in the case stated. It is, therefore, convenient to refer to the principal features of the Acts as they now stand.
Similarly, Kirby J observed at [89]:
Several amendments have been made to the Acts whose validity is in question in these proceedings. The questions in the case stated do not identify the date at which the issue of validity is to be determined. However, it was not disputed that the answers could be given by reference to the legislation as it now stands …
Counsel for the respondent adopted a similar position, and submitted that there is no material difference in the operative provisions of the child support legislation, before and after the enactment of the Amending Act and that nothing turns on the date of the determination.
In our judgment Mr Hunter has not identified any material alteration made to the relevant child support legislation by the Amending Act which would have the effect of altering the position as determined by the High Court in Luton.
We note that a challenge mirroring this challenge was rejected by Dowsett J in the Federal Court in Whittaker v Child Support Registrar [2002] FCA 1430 (24 October 2002) for similar reasons. There his Honour considered an application by Mr Whittaker arising out of the Registrar seeking to obtain his tax file number for the purposes of the Collection Act and Assessment Act. Mr Whittaker argued that such a request was inconsistent with the provisions of the Tax Administration Act and that certain provisions of that Act were unconstitutional. His Honour found from [2]:
2. I will deal with the Constitutional question first. Reliance is placed upon s 55 of the Constitution, which provides in part:
Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.
3. Subsection 8WA(1) of the Tax Administration Act provides:
A person must not require or request another person to quote the other person’s tax file number.
4. Subsection 8WA(1AA) provides for certain exceptions. One such exception is where the request is made in connection with the exercise of powers or performance of functions pursuant to an obligation imposed by a taxation law or a law of the Commonwealth referred to in par 202(ga) of the Income Tax Assessment Act 1997 (Cth) (the “Tax Assessment Act”). That paragraph relates to the facilitation of the administration of the Assessment Act and the Collection Act. Thus s 8WA has no apparent application for present purposes. Similar considerations apply to s 8WB of the Tax Administration Act. However the applicant submits that the exception provisions do not relate to matters of taxation and that s 55 of the Constitution prohibits their enactment in a law which imposes taxation. The short answer to that is that neither the Tax Administration Act, nor the Tax Assessment Act, in fact, imposes taxation. In any event, a challenge to the validity of ss 8WA and 8WB would inevitably result in their failing in their entirety, in which case there would be no continuing prohibition upon the use of tax file numbers. That is obviously not an outcome which would meet the needs of the present applicant.
…
6. Section 202 of the Tax Assessment Act discloses that one of the purposes for the introduction of tax file numbers was to facilitate the administration of the Assessment Act and the Collection Act...
Embraced within our rejection of these challenges is our rejection of, for the reasons stated, Mr Hunter’s challenge to the effect that the mechanism provided for the exchange of information between the Registrar and the Commissioner of Taxation is contrary to s 55 of the Constitution.
Alternatively, the Child Support Scheme, as it existed prior to the commencement of the Child Support Legislation Amendment Act 2001 (Cth) amounts to a forced exaction on other than just terms, contrary to s 51(xxxi) of the Constitution
Mr Hunter contends that the use for child support purposes of his tax file number, including the use of his declared income under the Income Tax Assessment Act 1936 (Cth) as his assessable income for child support purposes renders it a forcible exaction on unjust terms, contrary to s 51(xxxi) of the Constitution. He provides no authority to support his proposition.
As is made clear in Luton the Scheme established by the Assessment Act and the Collection Act does not provide for the imposition of a tax. It provides only a mechanism for the enforcement of an existing private obligation. The equivalent existing obligation owed by the payer to the carer in this case is substituted by a new obligation owed by the payer to the Commonwealth.
Nothing to which we were directed by Mr Hunter in argument of this challenge demonstrates how it could be said that the compulsory exaction pursuant to the Child Support Scheme amounts to an exaction on “unjust terms”, contrary to the Constitution.
Mr Hunter’s challenges to the constitutional validity of the Child Support Scheme are rejected.
We now turn to the balance of Mr Hunter’s grounds, not already dealt with.
Section 116(2) certificate –Grounds 1, 2, 3 and 9
Pursuant to s 116(2) of the Collection Act:
(2)The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The Registrar tendered a certificate issued pursuant to s 116(2) (“the statutory certificate”). That document, signed by one Bill Volkers and dated 16 November 2016 certifies that Mr Hunter had an amount of $40,031.94 owing due and payable to the Commonwealth in relation to a registrable maintenance liability: being $33,812.56 by way of child support debt and a further $6,219.38 by way of penalties.
An unsigned version of that document is exhibited to the affidavit filed in support of the Registrar’s application. That exhibit bears the name “Bill Volkers, General Manager Child Support Smart Centres Division”. Counsel for Mr Hunter contended before the primary judge that where Mr Volkers is not identified as the “Registrar” in either that document or the certificate which was ultimately tendered and where the Act does not make any provision for any person other than the Registrar signing such a document, the certificate should have either been struck out or afforded no weight in the determination of what liability, if any, was owed by Mr Hunter to the Commonwealth.
Whilst as earlier discussed a similar challenge to delegations was foreshadowed by Mr Hunter in his application for leave to appeal, in the course of argument of the appeal Mr Hunter confirmed that this challenge was abandoned. Mr Hunter, having acknowledged that the subpoena he had caused to be issued was “too wide” with respect to the delegations, likewise abandoned his foreshadowed challenge to the s 116(2) certificate on the same ground rendering it unnecessary for us to deal with the foreshadowed challenge.
Mr Hunter’s argument devolves into one of simply asserting that rather than the Registrar being permitted to rely upon the s 116(2) certificate, the Registrar was obliged to strictly prove the child support debt.
A number of authorities on certification sections in statutes of the “prima facie evidence” kind have arisen in respect of breaches of traffic laws. A useful summary of the principles in respect of such laws was made by Wells J in Merrall v Samuels (1971) 2 SASR 378 as follows:
1.A statutory presumption that fact A is prima facie proof of fact B cannot be weighed like ordinary oral testimony…
2.Where there is prima facie proof of a fact based upon such a statutory presumption, that proof is, in the absence of credible evidence tending to the contrary that engenders a reasonable doubt as to the truth of that fact, sufficient to establish that fact beyond reasonable doubt; and a Court, in such circumstances, is not obliged, in supposed obedience to principles enunciated in May v O’Sullivan (1955) 92 CLR 654 to weigh that proof again when all the evidence is before it.
3.A statutory presumption that fact A is prima facie proof of fact B is in no way impaired by reason only that some evidence has been led that is relevant to the existence or non-existence of fact B; the operation and effect of that presumption will depend finally upon the tendency and weight of the evidence led as to fact B in all the circumstances of the case.
4.Where there is a prima facie presumption by statute that fact B exists, but evidence has been led or elicited (by the prosecution or the defence or both) the total effect of which gives rise, in all the circumstances of the case, to a reasonable doubt as to whether fact B does exist, that fact has not, according to the standard of proof in a criminal case, been satisfactorily established.
5.Where the total effect of testimony led or elicited by the prosecutor or the defence or both is, taking into account those items of evidence that have been accepted or rejected beyond reasonable doubt, consistent with a fact the prima facie existence of which depends wholly upon a statutory presumption, that fact has been proved beyond reasonable doubt.
6.Evidence that is inherently inconsistent with a fact the prima facie existence of which depends upon a statutory presumption does not impair the operation and effect of that presumption if that evidence is disbelieved by the Court and rejected.
7.Where:-
(a)There is a prima facie presumption, of statutory origin, that a fact exists; and
(b)There is other evidence in the case consistent with, but insufficient of itself to prove, that fact, the operation and effect of that presumption continues unimpaired, and the fact must, consistently with principle 2 above, be taken to be proved beyond reasonable doubt.
Whilst obviously the subject proceedings are civil proceedings analogous conclusions can be drawn as to the operation of the presumption in s 116(2).
In this case, aside from the s 116(2) certificate, the Registrar tendered credible evidence in support of the certificate. Without being exhaustive, the “child support payer transaction statement for the period 15/3/2001 to 04/06/2015” is but one example.
More fundamentally though, no evidence was led by Mr Hunter in the proceedings below to challenge the correctness of the evidentiary presumption. That is, Mr Hunter led no evidence to challenge or put in doubt the accuracy of the calculation of any of his child support liability or any component of it the subject of the certificate. In short, there was no evidentiary reason for the primary judge to doubt the correctness of the matters stated in the certificate, by reference to any other evidence adduced in the case.
Before us, Mr Hunter repeated the bare assertion that the Registrar ought strictly prove each and every element the subject of the certificate, as his counsel below contended. However, the feature that Mr Hunter provided no evidentiary basis whatsoever to put any of the elements into question, results in the conclusion that the primary judge was perfectly entitled to ultimately rely upon the certificate as proof of its content.
We note in passing that before the primary judge there was the bare assertion by Mr Hunter, unsupported by any evidence for its foundation, that his status as a “taxpayer” is in dispute. The same assertion, likewise unsupported by evidence, was made by Mr Hunter before us.
The evidence adduced by the Registrar in the proceedings below included evidence of Mr Hunter being employed by a State government corporation. At [20] and [21] the primary judge recorded, correctly in our view:
20. [Mr Hunter] submits however that his status as a taxpayer is relevant to the validity of the assessment (paragraph 39 written submissions) and he is entitled to strict proof of that including whether and how the Registrar established he had a taxable income.
21. He provides no evidence save that there is litigation ongoing in the […] Court, to suggest that he is not a taxpayer. The evidence of [Mr Hunter] shows that he has been working in Australia for a State government corporation for the period 2001 to 2015. It would support a conclusion that there is a prima facie case that he is a taxpayer. With that in mind, [Mr Hunter’s] submission that he is entitled to strict proof is I consider flawed. Without further evidence from the respondent I do not consider there is any merit in this submission.
In our judgment the primary judge’s reasons for rejecting the argument that there was an unauthorised use of Mr Hunter’s tax file number by the Registrar were correct. At [24] to [26] and [50] to [54] the primary judge stated:
24.Whether the Registrar is authorised to record the respondent’s tax file number or use it in a manner connecting with his identity is the respondent submits, a question of fact which would support his application for a hearing to be conducted. This however is not accepted by the applicant who submits that even if there was some unauthorised use of the respondent’s tax file number which is neither admitted nor apparent, the respondent does not show how this would relieve him of the liability to pay either arrears of maintenance or late payment penalties.
25.Reference is made to Whittaker v Child Support Registrar [2013] HCASL 39 in which the Court states:
Whether there was, as the applicant asserts, some unauthorised use of his tax file number is a question of fact not explored in the courts below. Even if there were some unauthorised use, the applicant does not show how this would relieve him of liability to pay either the arrears of maintenance or late payment penalties.
26.The respondent submits he has a right to view the documents that establish he was a taxpayer at the time (paragraph 46 written submissions). I refer back to my comments that the evidence would support a conclusion that there was a prima facie case that he was a taxpayer at the time and in the absence of further information from the respondent I do not consider this submission has merit.
…
50.The applicant points out that pursuant to s.150D of the Assessment Act, the Child Support Registrar’s use of the respondent’s tax file number was lawful.
51.Even if there was unauthorised use there is nothing to show how this would relieve the respondent of any liability.
52.The respondent submits that his status as a taxpayer is relevant to the validity of an assessment and he is entitled to disclosure of documentation to establish the bona fides of the assessment in respect to whether and how the Registrar established he was a taxpayer and whether and how the Registrar established he had a taxable income.
53.Reference is made to the decision of the High Court in Luton v Lessels [2002] HCA 13 which rejected the proposition that the scheme established by the Collection Act and the Assessment Act for the collection and payment of child support constituted a tax or was contrary to the Constitution.
54.The applicant submits that nothing in Luton v Lessels relevantly assists the respondent in these proceedings. The principles applied in that case require the conclusion that the respondent’s challenge to validity will fail, (see Whitaker [sic] v Child Support Registrar). I accept that submission.
Up to 30 June 2001, s 8WD of the Taxation Administration Act and after 30 June 2001, s 8WA(1AA)(b) Taxation Administration Act; s 202(ga) of the Income Tax Assessment Act 1936 (Cth) and s 150D of the Assessment Act permits the Registrar to use Mr Hunter’s tax file number.
A person’s tax file number can be used in order to facilitate the Child Support Scheme (see Hardwick v Federal Commissioner of Taxation and Anor [2015] NSWSC 1557 at [31]).
Thus we accept the submission of the Registrar that even if the documents sought by Mr Hunter under the subpoena issued by him disclosed the use of Mr Hunter’s tax file number this would not provide a reason to set aside the s 116(2) certificate. By Ground 2, Mr Hunter contends that the primary judge erred at law or denied him natural justice in determining that the liability the subject of the s 116(2) certificate “was valid”. However, the primary judge did not in fact make this determination. What his Honour did was accept that the Registrar’s assessment decisions are binding and conclusive, subject to certain avenues of appeal, with enforcement proceedings challenging a s 116(2) certificate not being one of those appeals (Reasons at [22]).
It follows that Mr Hunter’s complaint that he was denied natural justice is without foundation.
Finally, we reject Mr Hunter’s contention before us that he established in the proceedings below that he had offered to pay the child support debt in its entirety. The evidence to which Mr Hunter refers in his affidavit can be seen to be, in fact, requests for further information rather than constituting an offer.
There is no substance to this challenge.
Failure to order compliance with the subpoena – Grounds 6, 8 and 11
We need not repeat what has already been said regarding the primary judge’s upholding of the Registrar’s objections to the subpoena.
To the extent that these grounds and the argument in support of them contend that the primary judge exercised his discretion unreasonably then the contentions must be rejected. As we have earlier observed, the subject discretion related to a matter of practice and procedure and nothing has been identified by Mr Hunter to demonstrate that the primary judge’s discretion miscarried.
Further, Mr Hunter has not demonstrated that the primary judge’s determination can be characterised as unreasonable. As Gageler J observed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) the test is a stringent one and it is a rare case where courts have made a finding of unreasonableness. The primary judge’s decision was, for the reasons we have already outlined within the “area of decisional freedom” within which “reasonable minds may reach different conclusions about the correct or preferable decision” (Li at [28] per French CJ). Mr Hunter has not demonstrated that the decision was arbitrary, capricious or abandons common sense (Li at [28] per French CJ). Moreover there is no basis for drawing any inference from the result, for example, in the manner suggested by Hayne, Kiefel and Bell JJ in Li at [76] because the result itself is not unreasonable or plainly unjust.
We have earlier quoted the primary judge’s reasons at [67] to [71] and we are comfortably satisfied that the findings the primary judge made as recorded in those reasons were open to his Honour.
The commencement of the proceedings – Ground 7
As earlier noted, Mr Hunter contends that the proceedings were improperly commenced by an application in a case and therefore ought to have been struck out.
The primary judge dealt with this contention from [15] of the reasons:
15.The applicant filed an Application in a Case with a supporting affidavit.
16.The respondent submits the proceeding should have been initiated in the usual way with the filing of an Initiating Application. He therefore seeks an order that the proceedings be dismissed.
17.The applicant points out that the proceedings were commenced pursuant to r.25B.09(2) of the Federal Circuit Court Rules 2001 which states that:
(1)this Rule applies to a person seeking to enforce payment of a child support liability that is not an order and is not taken to be an order.
(2)Before an enforcement order is made, the person must first obtain an order for payment of the amount owed by filing:
(a)an application in a case and an affidavit setting out the facts relied on in support of the application; and
(b)if the payee is the Child Support Agency or is seeking to recover a liability under s.113A of the Registration Act, a certificate under s.116 of the Registration Act.
18.The applicant submits they have commenced these proceedings by way of an Application in a Case, have complied with the provisions of r.25B.09(2) of the Federal Circuit Court Rules 2001 and therefore are entitled to proceed. I accept that submission and decline the application to strike out the proceedings.
Counsel for Mr Hunter, before his Honour, conceded the existence of the specific rule however asserted that
…it can only be an enforcement proceeding in a child support matter if, in advance of enforcing the matter through the application in a case, there has been a finding of a payable debt.
Now, in order to circumvent the usual trial process, what the Child Support Registrar has done here is to lodge a certificate, but we say that what they’ve really done is to try – is to treat the certificate as if it was a conclusive evidence certificate. It isn’t and [Mr Hunter] seeks to, we say, by due process engage the court procedures to test that proposition in the face of a certificate which, on its face, appears to be informal. That is, not an enforceable certificate.
…
It should have been dealt with by an application, and whether – I haven’t – I don’t make any submissions, at this stage, as to the appropriate course for determining precisely what the amount due and payable is, but my submission is that an application in a case, in the circumstances, is not the appropriate way to go.
(Transcript 16 November 2015, p 16, l. 43)
It seems to have been submitted that the commencement of the proceedings by application in a case is pre-emptive; that is, it is only appropriate when a determined liability exists but in circumstances where there is a challenge to the amount the proceedings should be commenced by way of application. Mr Hunter asserts that “enforcement of an administratively assessed child support liability is a two-step process comparable to a writ claiming a debt coupled with proceedings for enforcement of the judgment or orders obtained on the primary process, the process requires enforcement to commence by way of an initiating summons with an application in a case seeking a declaration” (footnotes omitted)(summary of argument at paragraph 9). Mr Hunter continues, “there is no jurisdiction to entertain such an application [in a case] for obvious reasons at common law primarily being unnecessary cost and time of the court and no utility whatsoever when the Register maintained by the respondent shows that amount” (summary of argument at paragraph 10).
However, as would be apparent, the Federal Circuit Court is a court of statute, not common law, and the rules expressly provide for such a mechanism.
Mr Hunter refers to two authorities in support of his assertion in this regard (Child Support Registrar & Bagala [2010] FMCAfam 363; Deputy Child Support Registrar & Harrison (1996) FLC 92-656), neither of which, with respect, assist; both of which having been determined prior to the commencement of r 25B.09 (on 11 July 2011) being the specific rule which provides for this enforcement mechanism; and one of which having been determined in the Family Court under the then applicable Family Law Rules.
In circumstances where the Collection Act expressly provides for the filing of a s 116 certificate as prima facie evidence of an asserted debt, the Registrar was entitled to rely upon that document as proof of the debt. What follows from this is that there was no error in the primary judge’s approach. The submission that the Registrar was required to file an initiating application seeking a declaration is rejected.
The above conclusion is fortified when regard is had to subrule 25B.09(1) which expressly provides for a mechanism for enforcing a “child support liability that is not an order and is not taken to be an order”. In circumstances where proceedings had otherwise been initiated and a determination made in respect of the liability, r 25B.09 would no longer be applicable, as it would be enforcement of a child support liability that is an order. That was not the case here.
Reasonable apprehension of bias – Ground 10
This complaint may be dealt with in short compass.
The references to the transcript relied upon by Mr Hunter in support of this contention simply relate to the primary judge raising questions concerning whether Mr Hunter had filed a tax return in past years, why he had not, and whether he had paid tax and whether the primary judge was obliged to make some referral of the case to the Australian Tax Office.
Mr Hunter, represented by counsel, in the proceedings before the primary judge, raised no complaint at any time about any conduct or statements of the primary judge. That being so, Mr Hunter is not entitled to raise such a complaint for the first time on appeal. (Vakauta v Kelly (1989) 167 CLR 568 at 572 per Brennan, Deane and Gaudron JJ). Mr Hunter is to be taken as having waived any right to object to any comments or behaviour of the primary judge during the hearing.
Moreover, we are satisfied that there existed no basis for such objection had it been made during the proceedings before the primary judge. The well-established test is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337).
Even if a judge has a “predisposition or inclination for or against an argument or conclusion” the essential question is whether the judge is or appears to be open to persuasion (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).
Properly viewed, it was a relevant question for the primary judge to raise whether or not Mr Hunter had filed taxation returns and paid taxation in the historical period. It was an entirely orthodox enquiry and it was entirely orthodox for the primary judge to raise the issue of referral so as to allow Mr Hunter an opportunity to raise any legitimate objection to such a proposed course of action, which the transcript reveals was taken. (Transcript 16 November 2015, p 8, l. 19 to p 9, l. 27).
We find no merit in this ground.
The DPO issue – Grounds 12 and 13
Division 5 of Part VA of the Collection Act (ss 72Q to 72T) provides the statutory framework for appeals and reviews in relation to DPOs.
Section 72Q(1) provides:
(1)A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order.
It is clear that the means of challenge to the making of a DPO is by an appeal to the Federal Court of Australia or the Federal Circuit Court of Australia. If such an appeal is made to the Federal Circuit Court, and an appeal is sought to be made from the judgment of that court, then the appeal lies to the Federal Court of Australia, and not to this Court. The appellate jurisdiction of the Federal Court of Australia as expressed in s 24 of the Federal Court of Australia Act 1976 (Cth) includes, in subsection (e):
(e)Appeals from judgments of the Federal Circuit Court exercising jurisdiction under s 72Q of the Child Support (Registration and Collection) Act 1988.
It is patently clear that the sole means provided by the statute to Mr Hunter to challenge the DPO on appeal was via an appeal pursuant to s 72Q(1) of the Collection Act. It is equally clear, given the administrative character of the subject matter of such an appeal, that in turn appeals from either a Federal Circuit Court judgment or a single judge of the Federal Court (as the case may be) on such an appeal is exclusively within the appellate jurisdiction of the Federal Court of Australia.
However, following its making, Mr Hunter never sought to challenge the DPO made by the Registrar on 20 February 2015 via a properly constituted appeal pursuant to s 72Q(1). What Mr Hunter sought to do in the proceedings below was to attempt, it would seem impermissibly, to incorporate in his response to the Registrar’s debt recovery proceedings challenges directed to the making of the DPO but not in the form of properly constituted appeal.
It would seem that the primary judge was correct to dismiss what was a misconceived and impermissible attempt by Mr Hunter to mount challenges to the DPO, not via an appeal pursuant to s 72Q(1), but as a respondent to debt recovery proceedings pursuant to s 113 of the Collection Act. We find no merit in Grounds 12 and 13 which are directed to the DPO. We note that even if, contrary to our view, Mr Hunter’s response in the debt recovery proceedings, to the extent it was directed to the DPO, could be characterised as an appeal, then as counsel for the respondent contended, correctly in our view, Mr Hunter’s attempt to appeal that decision to this Court is misconceived.
Moreover, at all material times, it remained open to Mr Hunter to apply directly to the Registrar for revocation of the DPO pursuant to s 72I of the Collection Act. The Registrar’s decision is subject to a right of review to the Administrative Appeals Tribunal under s 72T of the Collection Act.
We find no substance in these grounds.
Objections to evidence
Whilst it is not clear to which grounds of appeal these complaints relate, within Mr Hunter’s summary of argument are complaints to the effect that documents and information before the primary judge via affidavit evidence filed by the Registrar ought not to have been received in evidence.
Seemingly, Mr Hunter’s objections are founded on contentions as to delegations and documents generated prior to the appointment of Mr Volkers as acting Registrar on 10 June 2015. Mr Hunter’s complaint is that such documents were “invalidly obtained”.
For example, Mr Hunter contends that on the basis that the Child Support Payer Transaction Statement for the period 15/03/2001 to 04/06/2015 was issued on a date pre-dating Mr Volkers’ appointment as acting Registrar it is properly objectionable.
At [46] and [47] the primary judge recorded, correctly in our view:
46.The applicant points out that there is a presumption that persons acting as public officers, or in public capacities, have been regularly and properly appointed. Accordingly, proof that someone acted in the public capacity is evidence of that persons to appointment or capacity to act (Commonwealth of Australia v Antidiscrimination Tribunal (Tasmania) (2008) 169 FCR 85). There is also a presumption of continuance as to the ongoing effect of an appointment. (Giuseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465, 475 – 477).
47.In any event, I am referred to the Department of Human Services instrument number DHS-AUTH-7 of 2015 which confirms that Mr Bill Volkers is presently the acting Child Support Registrar and has been in that capacity since 10 June 2015 which predates the commencement of these proceedings.
With respect, those conclusions of the primary judge are entirely correct.
As earlier discussed, the s 116(2) certificate is prima facie evidence of the child support debt owed by Mr Hunter to the Commonwealth on the date that it was issued. The presumption concerning persons acting as public officers is applicable to actions undertaken by the Registrar prior to Mr Volkers’ appointment.
On behalf of the Registrar one Ms C provided affidavit evidence in the proceedings before the primary judge. In summary, Ms C deposed to having made a search of the child support register and other records held by the Registrar and other entities in relation to Mr Hunter’s liability. Ms C deposed that at the time she was employed as a Litigation Officer in the Child Support Services within the Australian Government Department of Human Services. Obviously, the presumption referred to applied to Ms C acting in a public capacity.
Mr Hunter’s contention to the effect that Ms C “cannot be shown to be authorised to use” Mr Hunter’s tax file number in circumstances where she “bears and [sic] evidential burden” (Mr Hunter’s summary of argument at paragraph 43.2) is misconceived. For the reasons already discussed the Registrar was entitled to use Mr Hunter’s tax file number pursuant to s 150D of the Assessment Act. The Registrar was not obliged to discharge any evidential burden with respect to Ms C.
Under s 150D of the Assessment Act the Registrar and his or her delegates were at all material times authorised to use Mr Hunter’s tax file number. The primary judge accepted that to be so (at [50]).
In summary, Mr Hunter has not demonstrated that the primary judge received any evidence to which valid objection could be or was taken. Moreover, Mr Hunter has not demonstrated that the primary judge made any error in the findings he recorded on this topic. Mr Hunter has not demonstrated any reasons to support the contention that the Registrar’s use of his tax file number was “unauthorised”. In any event, Mr Hunter did not demonstrate in the proceedings below nor on appeal any reasons to show why, even if unauthorised use of his tax file number was made, this would have the effect of relieving him of his child support liability. The primary judge made such a finding (at [51]) and that finding is entirely consistent with the observations of the High Court in rejecting the special leave application in Whittaker v Child Support Registrar [2013] HCASL 39 where it was observed at [5]:
Whether there was, as the applicant asserts, some unauthorised use of his tax file number is a question of fact not explored in the Courts below. Even if there were some unauthorised use, the applicant does not show how this would relieve him of liability to pay either the arrears of maintenance or late payment penalties.
Conclusion and costs
The discretion to grant leave conferred by s 107A of the Collection Act is expressed in unqualified and unfettered terms.
It is well established that the grant of leave in respect of such a discretion is generally limited to those cases where the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court and where substantial injustice would result if leave were to be refused.
For the reasons expressed, there is no reason to doubt the correctness of the conclusions of the primary judge. More fundamentally, no injustice is occasioned to Mr Hunter by reason of the refusal of leave in the circumstances of this case.
Thus leave to appeal is refused. It will be readily apparent from our reasons that even had we been inclined to grant leave, the appeal would have to be dismissed.
Mr Hunter has been wholly unsuccessful in these appeal proceedings within the meaning of s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”).
In Hendy v Child Support Registrar & Webb and Anor [2001] FamCA 6321 the Full Court confirmed the appropriateness of awarding costs to the Registrar in child support enforcement proceedings; and that enforcement proceedings are properly viewed as civil proceedings between the Commonwealth as a third party and the respondent as a citizen.
We are satisfied that there are justifying circumstances within the meaning of s 117(2) of the Act for an order for costs to be made in favour of the Registrar as sought by the Registrar, and we will make that order.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & Watts JJ) delivered on 30 November 2017.
Associate:
Date: 30 November 2017
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