Kness & Kness

[2000] FamCA 1032

[2000] FamCA 1032

CHILD SUPPORT (ASSESSMENT) ACT 1989

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  No.ML4878 of 1997

BETWEEN:

STEVE KNESS

(Husband)

and

LAURA JANE KNESS

(Wife)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:         11 April 2000

DATE OF JUDGMENT:      11 April 2000

REASONS FOR JUDGMENT

APPEARANCES:

The husband in person.

Mr Skinner of counsel, instructed by Grice & Grice, Solicitors, DX 31201, Balwyn, appeared on behalf of the wife.

CHILD SUPPORT - DEPARTURE - JURISDICTION - FAILURE TO FILE FORMAL OBJECTION

REPORTABLE

1. HIS HONOUR:   Laura and Steven Kness are the parents of three children, A, B and C, aged 9, 8 and 5.  The children live with their mother.  A child support assessment was issued by the Agency on 15 April 1999 dealing with the period from 1 July 1999 to 30 September 2000.  It was based on a child support income amount of $55,742.  Applying a child support percentage of 32 per cent to the adjusted income amount, the father was called upon to pay child support at a monthly rate of $1,213.92 which equates to approximately $280 per week.

1. The father applied for an administrative departure under s 98B of the Child Support (Assessment) Act.  He asserted that his commitments necessary to enable him to support himself did not allow him to meet the child support at the rate assessed.  The matter came on before a person who was previously described as a Review Officer, but who now signs off as a Senior Case Officer.  The Senior Case Officer published a notice of decision on 3 September 1999 reducing the child support to $600 per month. 

1. The reasons of the Senior Case Officer focused entirely upon the father's necessary expenses and concluded that he had necessary expenses of $2,336 a month, not including income tax expenses.  He found that the after-tax income was $3,140 which left an excess of after-tax income over necessary expenses of $804 a month.  The Senior Case Officer then went on to say:

"I am satisfied to deduct $204 for contact costs, which would leave an amount available for child support of $600 per month."

1. Although this has not been the subject of any argument before me and this case is going to be decided on different bases, I am somewhat puzzled as to the last deduction by the Senior Case Officer.  The ground being relied upon by the payer was that his necessary commitments for his own support prohibited him paying child support at the rate assessed.  There was no reliance on the ground that there were high costs involved in enabling the parent to have contact so as to justify any departure.  I just make that comment in passing which may or may not be of interest to any person who either judicially or administratively has cause to further consider this matter.

1. The mother received the notification that the child support that she was to receive for three children, which had previously been assessed at $279 a week or thereabouts, about $13 per child per day, was to be reduced to $600 a month or $138 a week, which is about $6.60 per day.  She was less than enthusiastic with that news and she wrote a letter to the Registrar of Child Support on 22 September 1999.  The text of the letter is set out in par 10 hereunder. 

1. The reason I make reference to the letter is as follows. A judge of this Court only has jurisdiction to deal with an application for departure from administrative assessment of child support where that application seeks to depart from periodic payment or assessment by substituting a different periodic payment or assessment, if there has been a determination under Part 4A of the Child Support (Assessment) Act.  That requires a determination by the Registrar (actually a Senior Case Officer previously called a Review Officer).  A further hurdle is placed in the way of the person aggrieved by the administrative process, namely s 116 which reads as follows:

"(1) Subject to subsection (1A), application may be made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case.

(1A) A person may not make an application under subsection (1) based on paragraph 115(b) in relation to the making of, or refusal to make, a departure determination unless:

(a)the person has objected under section 98X to the making of, or refusal to make, the departure determination; and

(b)the Registrar has either disallowed the objection or has allowed it only in part.

(1B) Subsection (1A) does not apply if:

(a)the person is party to an application pending in a court having jurisdiction under this Act; and

(b)the court is satisfied that it would be in the interest of the carer entitled to child support and the liable parent for the court to consider, at the same time as it hears that application, whether an order should be made under this Division in relation to the child in the special circumstances of the case.

(2) An application may be made by the carer entitled to child support, or the liable parent, in relation to the child."

1. It is to be noted that s 116(1A) requires the disallowance or allowance in part of an objection under s 98X before this Court obtains jurisdiction to hear an application.  Section 98X and subsequent sections relevant to the matter provide as follows:

"98X  Decisions against which objection may be lodged

(1)A person may lodge with the Registrar an objection in writing to any of the following decisions of the Registrar:

…

(d)to make or refuse to make a departure determination under Part 6A;

...

98Y  Who may lodge objection

The persons who may lodge objections against a particular kind of decision are as set out in the table below.

Decisions/objectors
Item	Decision	Who may object
4	To make or refuse to make a departure determination under Part 6A	Carer entitled to child support Liable parent

98Z  Time limits on lodging objection

General rule

(1)      An objection to a decision under this Part must be lodged by a person within 28 days after service of notice of the decision on the person unless:

(a)the decision is a refusal decision; or

(b)one of the grounds of objection to the decision is based on a refusal decision.

Meaning of refusal decision

(2)A refusal decision is any of the following:

(a)a decision under Part 6A refusing to make a departure determination;

…

Rule for refusal decisions

(3)      If the person’s objection is to a refusal decision, or to a decision on the ground that a refusal decision was wrongly made in relation to the decision, the objection must be lodged within 28 days after service of notice of the refusal decision concerned on the person.

98ZA  Grounds of objection

An objection must state fully and in detail the grounds of objection relied on.

98ZB  Registrar to serve copy of grounds of objection on other party

(1)      The Registrar must serve a copy of the grounds of objection:

…

(b)if the person objecting is a carer entitled to child support in relation to an administrative assessment—on the liable parent in relation to the administrative assessment; or

…

(2)      A person served with a copy of the grounds of objection may lodge with the Registrar a notice in opposition to, or in support of, the objection.

(3)      The notice must be in writing and must be lodged within 28 days after service on the person of the copy of the grounds of objection.

98ZC  Consideration of objections by Registrar

(1)      The Registrar must:

(a)consider an objection lodged under this Part, and any notice of opposition or support lodged under section 98ZB; and

(b)either disallow the objection, or allow it in whole or in part, within 60 days after the objection was lodged.

(2)      The Registrar must give written notice of the decision to the person who lodged the objection and to any person who lodged a notice under section 98ZB in relation to the objection.

(3)      A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.

98ZD  Application for extension of time

(1)      If the period for lodging an objection under this Part has ended, a person may lodge the objection with the Registrar, together with a written application asking the Registrar to consider the objection in spite of the ending of the period.

(2)The application must state the reasons for the person’s failure to lodge the objection within the period required by this Part.

98ZE  Consideration of applications for extension of time for lodging objections

(1)      If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:

(a)consider the application; and

(b)either grant or refuse the application within 60 days after the application was lodged; and

(c)if the Registrar grants the application—deal with the objection under section 98ZC.

(2)      If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.

…

(6)      If an application under subsection 98ZD(1) is granted, the person who made the application is, for the purposes of this Act, taken to have duly lodged the objection to which the application relates.

(7)      A person aggrieved by a decision under subsection (1) may apply to the AAT for review of the decision.

…"

1. In summary, an application can only be made by an aggrieved person if there has already been an administrative departure application dealt with and an objection to that administrative departure application has also been internally dealt with by the Child Support Agency.  The minimum requirements of the objection appear in s 98X and in s 98ZA, namely there has to be an objection in writing and it must state fully and in detail the grounds of objection relied on.  There does not appear to be any prescribed form.  Once the objection is received by the Registrar then the provisions of s 98ZB require the Registrar to serve a copy of those grounds of objection on the persons affected by the objection, namely the other parent who then has their own rights to lodge objections.

1. Section 98ZC then makes provision for the determination or refusal to determine the objections.  Section 98ZD provides for periods to extend the time for the lodging of objections.  I think I have already commented in previous proceedings that s 98ZE deems an application for extension of time to have been refused if there is no decision published within 60 days of the application being lodged.  There is no equivalent deeming provision in respect of the time for which a validly filed objection, one filed within time, is to be dealt with.  Section 98ZC(1)(b) says that the objection effectively has to either be allowed or disallowed within 60 days, but there is no deeming provision if that is not done.  The effect of the failure to do so is not something that I need turn my mind to directly today, but I again comment on the apparent inadequacy of the legislation.

1. I return to the letter written by the mother on 22 September 1999.  It read as follows:

"M Laura Kness  22nd September 1999

[address supplied]

Child Support
P O Box 9858
Moonee Ponds 3039

Ref. 738429/DFA8.1.1/UAVYI

Ms Cathy Argall

Regarding the decision by your office on the application to change my assessment.

I expect my financial circumstances to change during the next year. My youngest child is suspected of having Tourette Syndrome. The paediatrician and necessary tests are being paid for by my parents, since I cannot afford private health insurance and he will have to wait a year under the public health service for the MRI which has been ordered for him.

I can no longer accept any work offered by the agency since I have to be available to pick up my son by taxi if he has an attack at Child Care (also paid for by my parents) and be ready to take him to the necessary places till a decision is made on his condition. My husband is aware of [C]’s illness. Even should it prove a singular attack, he starts primary school in February of next year and I will need to be available to take him to and from school for a very few hours each day for the first term.

I will not offer any more explanations of my financial circumstances. It is obvious that your office has little or no interest in the well-being of either myself or my children. I have frequently wondered which one of you (or is there a panel - terrifying thought!) decided that just over $4 per day was an adequate amount for the upkeep of a child. I suppose I am lucky that this year it is increased to $7.33. 1 shall rush out and celebrate this extreme generosity and buy them an ice-cream. On the other hand, this would use up the increase. I shall leave it to their father to treat them - he is, after all, the only one of us who has been able to do this for the past year.

I refuse to concern myself with the figures you have put before me, I neither understand or accept them. I know only one thing, my husband's income is over $50,000 and mine is usually around $15,000.

With regard to the background information I will say this. Last year I was persuaded, against my better judgement, into a telephone mediation in which I was made to feel stupid and ignorant. Not understanding the implications of what was being proposed, I unwittingly agreed to a reduced maintenance payment. This year I have refused to be put into that position. You state that after your phone conversation I agreed I had had a fair hearing. I flatly deny this and have witnesses to my phone calls with your office and my undoubted dissatisfaction at the end of them.

As to the particular points in my husband's statement. My husband walked out of our marriage with everything of value except the washing machine which was reasonably new. His settling expenses were roughly the cost of a second-hand washing machine and refrigerator and a bed he built himself. To date he has not made any proper sleeping arrangements for the children when they stay with him.

As for the something for me. He has wanted a Harley Davidson motorbike for as long as I've known him and willingly sacrificed his family for it. I offered to purchase one for him with my Workcover compensation - he opted to use the money to go to UK and introduce our children to his family. I know this is of no interest to you and seemingly of no consequence. His desire for the Harley persisted and Steve always get what he wants - whatever it costs. The bike, the leather jacket, the beard and the tattoo - all preferable to home and family.

As to the particular points on the assessment. With regard to my husband's necessary expenses, it is obvious that I have vastly underestimated my own. I therefore present a list:

Per Fortnight

*Groceries   $300

*Health Insurance  Can't afford it

*Other Insurance  $50

*Half Mortgage  $320

*Other loan repayments        $100 (furniture for the children's bedrooms)

*Rates, Gas, Water, Elec, Teleph.   $150

*Vehicle expenses  Can't afford one or driving lessons. *Taxi fares and public transport fares

in lieu of vehicle expenses           $80

*Clothes, shoes hairdressing         $50

*Credit cards  $200+ (debts incurred since separation)

*Contact Costs  I haven't a clue what these are but I'm sure I've got some.

*Miscellaneous  $25

Incidentally, the address you insist on using on the correspondence you send to me is no longer valid as I have repeatedly tried to inform you. That was the rented accommodation I was forced to share with my sister and brother-in-law when I could no longer afford to keep the house I shared with my husband.

My current address is…as indicated on the top of this letter - the property whose mortgage I share with my sister and brother-in-law - though since it is impossible to pay my part of the expenses, the cost of keeping my children decently housed is falling upon them and my parents. At this point I estimate that since my husband walked out my parents have paid between $3000 and $4000 dollars to cover the expenses necessary to provide my children with the lifestyle they were used to before their father left.

Since your office has seen fit to offer me yet another year of hardship and increasing debt, my parents and I have decided that a proper solicitor will at least be as cheap. I will then have some idea of what my entitlements really are and can relieve my mind of the constant pressure my husband and your office put me under.

Laura Jane Kness"

1. I say that the letter appears to be as follows.  Firstly, it is a complaint that the amount the mother is to receive is inadequate from her perspective having regard to her needs for the children.  Secondly, it is a general complaint about her dealings with the Agency.  Thirdly, it is a more specific complaint about the father's alleged extravagance in respect of the acquisition of a motor bike.  And finally, it concludes with a complaint of pressure being exerted upon her by the father and the Agency itself and her desire to obtain other relief.

1. As much as it would be convenient for me to deal with the substance of this matter today as the parties are both here and the issues are likely to be fairly narrow, I find it impossible to say upon reading the letter that it states fully and in detail the grounds of objection relied on.  Counsel for the wife has indicated that the significant basis of attack is likely to be upon the issue of the father's personal needs.  The current assessment is the one created by the Senior Case Officer, namely $138 a week.  Assuming that there was no jurisdictional bar to me hearing this matter, the process before me today would be to determine whether there now existed a ground for departure.  The ground for departure relied upon by the mother is that in the circumstances of the case this is an unjust and inequitable result having regard to the income and earning capacity of the father and the financial circumstances of both households.

1. If that gate is open, I would then need to turn to s 117(4), look to see the reasonable costs of the children and then look to how each of those costs ought to be apportioned between the parties having regard to, inter alia, the necessary expenditure of the parties.  That would bring me back in a circle to the point the mother really wants to argue about, namely what the father spends his money on and whether it can be said to be a commitment necessary to enable him to support himself.

1. As I have said, the parties are here and I am ready, willing and able to deal with the matter, but there is a jurisdictional bar that precludes me from doing so because when one reads the letter that the mother wrote to the Agency, apart from expressing her dissatisfaction with the outcome, it would be impossible to glean why it was that she was dissatisfied with the outcome.

1. The Agency responded to a letter written on 22 September by a letter written by them on 17 February 2000.  Given the statutory guidelines to objections being dealt with within 60 days, one might have expected that within 60 days there would have been a response, sometime I would think early October, saying look, we have got your letter of complaint, if you are objecting, the process requires you to do the following and then set it out.  But no, nothing but silence until 17 February when the Regional Registrar of the Child Support Agency at Moonee Ponds writes back and says:

"Dear Ms Kness,

Thank you for your letter of 22 September 1999, received in the Child Support Agency, Moonee Ponds, on 23 September 1999.  I apologise for the delay in responding."

1. Those are hard words to digest for somebody who has the support of three children and who has to struggle from day to day to meet that support.  No explanation is given why there is delay in response.  There might be a valid reason, but the Agency is not here to defend itself and I say no more other than to indicate it seems an extraordinary delay.

1. After dealing with the specifics of the mother's complaints, the letter concludes:

"If you believe you have new and relevant information, you may apply for a Change of Assessment.  Please find enclosed an application form for you to utilise if you consider this to be appropriate. 

I hope that this letter is of assistance to you.  Please contact [a named officer on a given phone number]       if you have any inquiries regarding the above."

1. Nothing in that letter appears to draw to the attention of the mother the provisions of Part 4B of the Act nor the limitations contained in the Act under s 116.  I would have expected such a response from the Agency. 

1. The position I find myself in is that objection having been taken to the jurisdiction by the husband and virtually conceded by Mr Skinner on behalf of the wife, I must now dismiss the Form 63 filed by the mother in these proceedings for want of jurisdiction.  In so doing, I am not intending to in any way inhibit the mother from re-filing such an application once the objection processes have been exhausted if she is still dissatisfied with the outcome.

1. That raises a different conundrum.  If the mother is satisfied with the outcome of the objection process, the father may be left with no remedy because s 116(1A) precludes him from making an application to a Court for a departure order unless he has objected under s 98X to the making or refusal to make the departure determination.  But he had no reason to object because he was accepting of the making of the departure determination.  Once again, I draw that problem to the attention of the legislature.

1. This judgment is now likely to lead the mother to make an application to the Registrar under s 98ZD, seeking extension of time.  Without in any way endeavouring to tell the Registrar how she should conduct the Agency business, one might have thought that the delays that were created by the Agency in failing to respond to the letter of 22 September and the apparent failure by the Agency to provide the mother with correct information, might be sufficient grounds to consider the application out of time.

1. One passing comment and final matter is that this whole process contained in the legislation appears to be amazingly cumbersome and may have the effect of grinding the parties down to a point where they find the whole exercise overwhelming.  It is dealing with the day to day needs of people to survive economically.  It is dealing with the needs of the parent who has the care of the children to provide for the children.  It is dealing with the strained financial circumstances of the other parent who is often trying to set up a new household and has to stretch funds which previously were available for one household to meet the needs of two.  In many cases there is no capital base and no savings to draw upon.

1. The processes built into this legislation are

§  an assessment,

§  a departure application,

§  the consideration of the departure application involving hearing both sides,

§  an objection which has 28 days to be lodged, 28 days to be answered and 60 days to be considered.

This allows four months minimally to go by during which time the payer, lulled perhaps into a sense of false security, spends money for which he/she is subsequently found to be liable to the payee, or alternatively the payee spends money for which she/he is subsequently found liable to the payer, and there is no money to make up the backlog.  It has to come out of future moneys needed to be spent on the children or on self-support.

1. That can then be compounded with an application to this Court and its appellate processes.  This is legislation for people who need immediate attention to their economic problems.  It is hard to see the reason for such monumental bureaucratic hurdles as are created by Part 4B.

1. The formal order of the Court will be the Form 63 filed 6 December 1999 be struck out.

I certify that the preceding 25 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 28th day of April 2000

Associate: Elizabeth Hore