Klement and Glynn
[2010] FamCA 40
•29 January 2010
FAMILY COURT OF AUSTRALIA
| KLEMENT & GLYNN | [2010] FamCA 40 |
| FAMILY LAW – CHILD SUPPORT – jurisdiction – application by the mother seeking orders pursuant to ss 111 and 112 of the Child Support (Assessment) Act 1989 (Cth) for leave for the Registrar to make a determination under s 98S in respect of child support periods more than 18 months prior to the date of the application – whether the Court is able to make the orders sought – whether the application is a “sham” to overcome difficulties caused by the mother’s failure to pursue appropriate avenues of review of the Registrar’s decision and failure to appeal the refusal to grant an extension of time to review – application dismissed |
| Child Support (Assessment) Act 1989 (Cth) ss 98B, 98S, 110, 111, 112 & 118 Dwyer & McGuire (1993) FLC 92-420 Hendy v Child Support Registrar & Anor (2001) 27 Fam LR 641 |
| APPLICANT: | Ms Klement |
| RESPONDENT: | Mr Glynn |
| FILE NUMBER: | ADC | 2056 | of | 2008 |
| DATE DELIVERED: | 29 January 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 18 December 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Lempriere Abbott McLeod |
| COUNSEL FOR THE RESPONDENT: | Ms Belchamber |
| SOLICITOR FOR THE RESPONDENT: | Belchamber Legal |
Orders
Paragraph 13 of the mother’s Amended Initiating Application filed on 9 September 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Klement & Glynn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2056 of 2008
| MS KLEMENT |
Applicant
And
| MR GLYNN |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed on 9 September 2009 the mother sought, inter alia:
“13. An order pursuant to Sections 111 and 112 of the Child Support Assessment Act:-
13.1Granting leave to the Registrar to make a determination under Section 98S; or alternatively
13.2Granting leave to the Court to make an order under Section 118
In respect of periods more than 18 months prior to the date of this application namely the period between about October 2005 and about October 2006 and the period from October 2006.”
In preparing the matter for final hearing a question was raised in relation to the jurisdiction of the Court to determine the child support issue.
That issue was listed before me for determination on the 18 December 2009.
Hearing
On 18 December 2009 the applicant mother was represented by Mr McQuade of counsel and the respondent father by Ms Belchamber. The Independent Children’s Lawyer did not seek to be heard in relation to child support.
At the hearing on 18 December 2009, Mr McQuade, counsel for the mother, conceded that the mother was seeking an order pursuant to section 98S of the Child Support (Assessment) Act 1989 (Cth) and did not pursue leave for the Court to make an order under section 118.
The hearing before the Court on 18 December 2009 was limited to the question of the ability of the Court to apply the relevant provisions of the Child Support legislation. If the Court had the ability to make the order sought in these circumstances then the question of the Court exercising the relevant discretion was left to be determined on another occasion.
At the hearing discussion took place between counsel and the bench. The mother’s counsel in particular relied upon a document headed “Particulars of the orders sought by the mother in relation to child support pursuant to paragraph 1 of the order of the Honourable Justice Dawe made on 16 October 2009” (document 56).
Relevant background and chronology
The proceedings between the mother and father concern the child of the parties, who was born in November 2003. The parties separated in 2004. Since that time there have been various proceedings in the Family Court of Australia and other courts between the parties concerning the child and other matters.
Final orders concerning the child and the parenting arrangements have been made on previous occasions. The current proceedings concerning final orders in relation to children’s issues are adjourned for conclusion in February 2010.
The Amended Initiating Application filed by the mother on 9 September 2009 was the first application in which the question of child support was raised in this Court.
In the “Particulars” document filed by the mother on 30 October 2009 the mother sets out her version of the relevant facts, part of which includes paragraphs 3 to 23 inclusive which state:
“3. From time to time the Child Support Agency has made assessments of the level of child support payable by the father to the mother.
4. Certain of the assessments have been based upon incorrect information as to the level of care provided by each party to [the child].
5. By letter dated 4 October 2005 (Annexure A) the Child Support Agency advised the mother that as from 1 October 2005 the assessment of child support payable by the father would be made on the basis that the mother had major care of [the child]. (Emphasis added).
6. The mother says that the basis of the assessment referred to in paragraph 5 was in error. The assessment should have been made on the basis that the mother had sole care of [the child]. (Emphasis added).
7. The mother says that the assessment referred to in paragraph 5 was based on incorrect information given to the Child Support Agency by the father.
8. As a result of the change of assessment referred to in paragraph 5 the amount of monthly payments payable by the father was reduced from $1,759.58 to $1,368.58.
9. At the time of the change referred to in paragraph 5 the mother:-
(a)Was fully occupied in the care of the child and in litigation in the Family Court.
(b)Had insufficient time to object to the assessment and was unaware of the process involved and her rights in the matter.
(c)Was dealing with an application by the father to reduce the assessment based on his legal costs at the time.
10. By letter dated 20 October 2006 (Annexure B) the Child Support Agency advised the mother that as from 3 October 2006 the assessment of child support payable by the father would be made on the basis that the parties had shared care of [the child]. (Emphasis added).
11. The mother says that the basis of the assessment referred to in paragraph 10 was in error. The assessment should have been made on the basis that the mother had major care of [the child]. (Emphasis added).
12. The mother says that the assessment referred to in paragraph 10 was based on incorrect information given to the Child Support Agency by the father. See Annexures C and D which are Child Support Agency notes of conversations between Child Support Agency officers and the father dated 19 September 2006 and 3 October 2006.
13. On 16 October 2006 the mother advised the Child Support Agency that she disputed the level of care asserted by the father. See Annexure E which is a note of the conversation between a Child Support Agency officer and the mother dated 16 October 2006.
14. Annexure F is a note from the Child Support Agency file dated 20 October 2006. The mother says that the interpretation of the Child Support Agency as to the level of care which applied pursuant to the order of the Family Court was in error.
15. The mother continued to have communication with the Child Support Agency as to the actual level of care. See Annexures G, H and I.
16. The father also continued to have communication with the Child Support Agency. See Annexures J and K.
17. On 30 October 2007 the mother made a late objection to the assessment referred to in paragraph 10. See Annexure L. (Emphasis added).
18. On or about 6 November 2007 the Child Support Agency ruled against the mother’s application for an extension of time. Accordingly there was no consideration by the Child Support Agency of the mother’s objection relating to the level of care.
19. As a result of the change of assessment referred to in paragraph 10 the amount of monthly payments payable by the father was reduced from $1,058.42 to $882.92.
20. At time of the change referred to in paragraph 10 the matter (sic):-
(a)Was fully occupied in the care of the child and in litigation in the Family Court.
(b)Had insufficient time to object to the assessment and was unaware of the process involved and her rights in the matter.
21. The mother also says that the Child Support Agency was in error in preferring the interpretation of the relevant Court order to that of the mother in circumstances where the parties were in dispute at to the proper interpretation.
22. Annexure M is a chart showing all nights that [the child] was in the care of the father from October 2005 to October 2006.
23. Annexure N is a chart showing all nights that [the child] was in the care of the father from 3 October 2006 to 2 October 2007.”
In the summary filed on behalf of the mother it states as follows:
“24. The mother says:-
(a)That as a result of the matters set out above the amount of child support paid by the father has been of the order of $10,000 less than it should have been. The mother does not, however, seek an order of this Court quantifying the amount (see paragraph 20 [sic] (e) below).
(b)That in the case of the assessment referred to in paragraph 5 the mother should not be prejudiced by her failure to make a formal application under Section 98B or section 116.
(c)That in the case of the assessment referred to in paragraph 10 no prejudice will ensue to the father due to the fact that the mother’s objection was well known to the CSA and the father at all relevant times.
(d)That the mother will suffer hardship if leave is not granted.
(e)That the Court should make an order pursuant to 112(1) requiring the Registrar to make a determination under section 98S.”
The mother seeks that the Family Court of Australia exercise its discretion to indicate that the Registrar may consider making a determination under section 98S for the periods which are more than 18 months prior to the date of the application, namely from October 2005 including the periods commencing October 2005 and October 2006 (pursuant to sections 111 and 112 of the Child Support (Assessment) Act 1989).
The Law
Relevant legislation concerning this child support issue is set out in the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) and the relevant accompanying regulations. The legislation is long and complex.
The provisions of sections 111 and 112 of the Child Support (Assessment) Act 1989 are as follows:
SECTION 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.
(2) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a)the applicant; and
(b)either:
(i)the liable parent; or
(ii)the carer entitled to child support.
Registrar application
(3) The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S 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.
(4) The parties to the proceeding under subsection (3) are:
(a)the applicant; and
(b)the liable parent; and
(c)the carer entitled to child support.
SECTION 112
Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a)the Registrar to make a determination under section 98S; or
(b)the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
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.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a)must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b)is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a)the Registrar is required to make a determination under section 98S; or
(b)the court is required to make an order under section 118.
The above sections are part of Division 3 of Part 7 of the Act.
Section 110 is entitled “Simplified Outline”. It provides as follows:
The following is a simplified outline of this Division:
• Normally, the Registrar cannot make a departure determination under Part 6A, and a court cannot make a departure order under Division 4 of this Part, in respect of a day in a child support period that is more than 18 months earlier.
• Under this Division, a liable parent, a carer entitled to child support or the Registrar can apply to certain courts for leave for a determination or order to be made in respect of a day in a child support period that is more than 18 months earlier.
• A court must not grant leave for such a determination or order to be made in respect of a day in a child support period that is more than 7 years earlier.
• If a court grants leave, the court can decide whether the Registrar should make such a determination or the court should make such an order.
Section 98S (to which sections 111 and 112 refer) provides:
SECTION 98S
Determinations that may be made under Part
(1) The determinations the Registrar may make under this Part are as follows:
(a)a determination varying the annual rate of child support payable by a parent;
(b)a determination varying a parent's or non‑parent carer's cost percentage for a child;
(c)a determination varying a parent's child support income;
(d)a determination varying the parents' combined child support income;
(e)a determination that:
(i)the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is determined to be, greater than 2.5 times the annualised MTAWE figure for the relevant September quarter, is the column headed "2 to 2.5"; and
(ii)the column is to apply as if the second dollar amount in the heading to that column did not apply;
(f)a determination varying a parent's child support percentage;
(g)a determination varying a parent's adjusted taxable income;
(h)a determination varying a parent's relevant dependent child amount or multi‑case allowance;
(i)a determination varying a parent's self‑support amount;
(j)a determination varying the costs of the children.
Note: There are limitations on the Registrar making a determination that varies an annual rate of child support payable in respect of a child support case below the minimum annual rate (see section 98SA).
(2) In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
(3) A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period.
(3B) The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 months earlier than:
(a)the day on which the application for the determination is made under section 98B; or
(b)the day on which the Registrar notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for the determination to be made.
(3C) If a court has granted leave under section 112, the Registrar may only make a determination under this Part in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
(4) The Registrar must give, in writing, the reasons for making the determination (including the reasons for which the Registrar is satisfied as required by paragraph 117(1)(b)).
(5) A contravention of subsection (4) in relation to a determination does not affect the validity of the determination.
Section 98S is in Part 6A “Departure from Administrative Assessment of Child Support”. Section 98B is also in that Part and states:
Application for determination under Part
(1) If, at any time when an administrative assessment is in force in relation to a child:
(a) the liable parent concerned; or
(b) the carer entitled to child support concerned;
is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from in relation to the child, the liable parent or carer may, by written application, ask the Registrar to make a determination under this Part.
Note 1: For the determinations that the Registrar may make under this Part see section 98S.
Note 2: The Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant application is made with a court's leave under section 112 (see subsection 98S(3B)).
(2) The parties to the proceedings under this Division are the liable parent and the carer entitled to child support. (Emphasis added).
The relevant provisions of the Child Support (Registration and Collection) Act 1988 are in Part VII and VIIA.
Section 79D provides:
Simplified outline
The following is a simplified outline of this Part:
• Certain persons can object under this Part to certain decisions of the Registrar under the Assessment Act and this Act.
• If a person objects to a decision, the Registrar is required to reconsider the decision under this Part.
• If a person is dissatisfied with the reconsideration, he or she can apply to the SSAT for review of the decision under Part VIIA of this Act.
• A person can appeal from the SSAT to a court on a question of law under Subdivision B of Division 3 of Part VIII of this Act. ”
Section 80 provides:
Decisions against which objections may be lodged
(1) A person may lodge with the Registrar an objection in writing to a decision of the Registrar if:
(a)the decision is set out in an item of the following table; and
(b)the person is set out in that item.
Decisions/objectors Item Decision Who may object …
11…
as to the particulars of an administrative assessment…
(a) the carer entitled to child support; or
(b) the liable parent
The process for seeking review of decision concerning administrative assessments including extension of time are set out in detail providing for appeals to the SSAT, AAT and higher courts.
Section 103VA provides:
Appeal to AAT on decisions relating to percentages of care
(1) A party to a review aggrieved by a decision of the SSAT under this Part relating to a party's percentage of care for a child may apply to the AAT for review of the decision.
(2) In subsection (1):
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975. (Emphasis added)
Issues
Counsel for the mother maintains that the provisions of sections 111, 112 and 98S of the Child Support (Assessment) Act 1989 clearly give the mother the ability to apply to the Court for leave to ask the Child Support Registrar to exercise the discretion under section 98S.
The submissions on behalf of the father are that such an application, made in the present circumstances by the mother, is a sham because the mother is in effect seeking to overcome the difficulties the mother faces by her failure to pursue the appropriate avenues for review of the Registrar’s decision and her failure to obtain an extension of time to do so.
Submissions made on behalf of the father include reliance upon the procedures set out in Part VII and Part VIIA of the Child Support (Registration and Collection) Act 1988 in particular those provisions which set out the procedures for an internal objection to decisions of the Registrar about the particulars of an administrative assessment of child support (see in particular sections 80 to 93 inclusive of that Act).
On behalf of the father it is therefore submitted that this Court does not have jurisdiction in these particular circumstances to exercise the discretion provided in section 112 of the Child Support (Assessment) Act 1989.
Discussion
The Court has the power to grant leave for the Registrar to make a determination under section 98S if an application is made under section 111. Section 111 relates to applications for leave in respect of a child support period that is more than 18 months and less than seven years earlier than the day on which the application under the section is made. The mother is seeking leave to make an application for periods beginning in October 2005. The periods are therefore within the provisions of section 111.
Under section 98S the Registrar can make a determination which varies the various factors set out in that section including a determination varying a parent’s child support percentage (section 98S(1)(f)).
The significant fact however is that section 98B specifically requires that the carer may request a departure from an administrative assessment of child support “… at any time when an administrative assessment is in force in relation to a child” (Emphasis added).
The first assessment which the mother challenges (and about which she now seeks a departure by the Registrar) is the assessment annexed to a letter to the mother dated 4 October 2005, being the assessment which operated from 1 October 2005.
The mother’s own submissions indicate that this assessment is no longer in force. She has received a further assessment being the assessment operating from 3 October 2006 which was received by letter to the mother dated 20 October 2006.
The administrative assessment is no longer in force and therefore the provisions of section 98B would in any event prevent the Registrar making a determination under section 98S in relation to that period.
The information before the Court indicates that from January 2009 the child was in the equal shared care of her parents.
The same considerations may therefore apply to the administrative assessment by the Child Support Agency to the mother on 20 October 2006 operating as from 3 October 2006.
However, if this interpretation is incorrect[1] and an application for a departure can be made pursuant to section 98S if there is any assessment of child support in force, then it is necessary to consider the arguments advanced by the father in opposing the Court’s ability to make an order under section 112 in the circumstances.
[1]Discussed in Dwyer & McGuire (1993) FLC 92-420 and Hendy v Child Support Registrar & Anor (2001) 27 Fam LR 641
The relevant facts submitted by the mother indicate that the mother objects to the assessments of child support on the basis that the Child Support Agency were incorrect in the calculation of the particulars of the amount of care the mother and father had during the relevant periods.
The mother maintains that the first assessment was incorrectly based upon an assertion that the mother had major care of the child when it should have been on the basis that the mother had sole care of the child. She says that the second assessment was incorrect because it was based upon the parties having shared care of the child when it should have been on the basis that the mother had major care of the child.
The provisions of the Child Support (Registration and Collection) Act 1988 set out the procedures to be followed for an objection to decisions of Registrars about the particulars of an administrative assessment of child support.
If a party is unsuccessful under the internal objection procedures then the party may apply to the Social Security Appeals Tribunal. Section 103VA provides for an appeal to the AAT for matters relating to percentages of care.
The mother has not followed the review procedures.
On 30 October 2007 the mother made a late objection to the assessment (being the second assessment operating from 3 October 2006). On 6 November 2007 the Child Support Agency ruled against the mother’s application for an extension of time. The mother has not taken any further action to appeal the refusal for the extension of time. She now asks the Court to grant leave to have the Registrar reconsider the matter.
Errors which the mother seeks to maintain are errors which fall within the description of “the particulars” used for the determination. The errors of which she complains are errors relating to percentage of care. The process set out in the Registration and Collection Act for such matters to be reviewed and subject to further appeal have not been used by the mother.
In this case the mother is asserting that the administrative assessment was wrong and that there are special circumstances which should permit her to now require the Registrar to reconsider the original administrative assessments made years ago.
However, the mother is actually asserting that the administrative assessments were wrong. This is not the purpose or correct interpretation of the provisions relating to departure orders.
I therefore accept the submissions on behalf of the father that the mother’s application is in fact an application seeking to overcome the difficulties created by her failure to pursue the appropriate avenues for review of the administrative assessments and the avenues available to her at the time to appeal the failure to grant the extension of time to do so.
Conclusion
Based on the interpretation of the particular provisions of section 98B and the inter-relationship between the two Child Support Acts I am satisfied that the mother’s application is not an application for leave to bring a departure application but is a sham, being an attempt to sidestep the provisions of the Registration and Collection Act concerning reviews of administrative assessments.
It is therefore not an application within the provisions of sections 98B and 98S of the Assessment Act. It is not necessary to consider the discretion to grant leave.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 29 January 2010
2
0
4