Lamon and Lamon and Anor
[2019] FCCA 2113
•2 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMON & LAMON & ANOR | [2019] FCCA 2113 |
| Catchwords: DEPARTURE PROHIBITION ORDER – Appeal – appeal dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.44AAA(1), 44 Child Support (Registration and Collection) Act 1988 (Cth), ss.4, 18A, 34, 37, 42, 42C, 42D, 44, 72D, 72Q |
| Cases cited: Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 |
| Appellant: | MS LAMON |
| First Respondent: | MR LAMON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 3158 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 5 December 2018 |
| Date of Last Submission: | 5 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2019 |
REPRESENTATION
| Counsel for the appellant: | Ms Vohra SC |
| Solicitors for the appellant: | None |
| Advocate for the first respondent: | No appearance |
| Solicitors for the first respondent: | None |
| Advocate for the second respondent: | Ms Whittemore |
| Solicitors for the second respondent: | Sparke Helmore |
ORDERS
The appellant is granted leave to appeal the decision of Member B of the Administrative Appeals Tribunal dated 22 August 2017 out of time.
The appellant’s appeals be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Lamon & Lamon & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3158 of 2018
| MS LAMON |
Appellant
And
| MR LAMON |
First respondent
| CHILD SUPPORT REGISTRAR |
Second respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an appeal from:
a)a decision of the Administrative Appeals Tribunal (“AAT”) in a child support review; and
b)the decision of the Child Support Registrar to issue a departure prohibition order.
The present applications gives rise to the following issues:
a)Whether an extension of time ought to be granted?
b)Whether the appellant has established that the AAT’s decision is affected by an error of law?
c)If the answer to 2(b) is yes, does the court have the power to grant the appellant the relief she seeks?
d)Whether the appellant has established the requirements for the court to set aside the departure prohibition order (“DPO”)?
The first respondent did not file any documents in this proceeding, nor did he attend the hearing of this matter.
The second respondent opposed each of the orders sought by the appellant, sought that the appeals be dismissed and also an order for costs in the sum of $7,200.
Facts
The factual background to this matter is not in dispute.
The appellant and the first respondent are the separated parents of two children, [X] born … 1995 and [Y] born … 1998. The appellant lives in Australia and the children reside in Country C, as does the first respondent. It is not necessary for the purposes of this decision to set out the circumstances which led to the appellant and the children residing in different continents. In summary however, the appellant’s case is that she returned to Australia without the children after she lost her job in Country C in 2006 and thereby lost her rights to continue to reside in Country C.
The appellant deposed that in April 2010, she was advised by the Child Support Agency (“CSA”) that the first respondent sought collection of child support from her, which amounted at that time to some $35,204.52 in arrears and an ongoing monthly sum of $763.28. The liability to make those payments arose from orders made in Country C on 19 May 2004 (“May 2004 orders”). The May 2004 orders were registered with the second respondent pursuant to section 18A of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act”).
The appellant deposed that she then contacted the CSA and advised that she was in receipt of government benefits, which meant that it would be difficult for her to meet these obligations. She understood that the CSA would reconsider the assessment.
The appellant was then advised in March 2011 that the debt had accumulated to $47,800.57, including over $4,000 in penalties. The appellant then entered into a payment plan and reduced the outstanding amount to $22,000.
It appears that in or about March 2012, the Department of Human Services (“the Department”) formed the view that the May 2004 orders required that the child support liability was subject to indexation and sought clarification from Country C to determine the amount of child support required to be paid pursuant to the order. Ultimately, that further information was not provided to the Department until 2016.
On 20 July 2016, the Department recalculated the relevant child support payable by the appellant pursuant to the overseas maintenance order on the basis of the further information received from Country C. As a result, the arrears owed by the appellant increased from just over $22,000 to just under $49,000. The monthly child support payable was also increased to $971.51.
On 20 July 2016, the appellant contacted the Department to query these changes. The appellant received a letter from the Department, which relevantly contained the following statement:
I can also confirm that on the 4th of July the Country C Human Services Department wrote to us to confirm that there is no new final order in this matter however the determination of the original Country C judgement is subjected to regular modifications of child maintenance statutes dealing with the setting of maintenance amounts and that the determination can be adapted anytime on the application of the applicant. The new rates payable in accordance with the new Registration Notice we sent to you on 20th July 2006 whilst converted into Australian Dollars have been determined in accordance with the Country C revised maintenance statutes. The Country C Authority has advised Child Support Australia that this is on the basis that both [X] and [Y] are still students.[1]
[1] Annexure TL-3 of the affidavit of Ms Lamon sworn and filed 23 March 2018.
The appellant objected to the decision that she owed arrears by letter dated 8 August 2016. This was treated as an objection, was considered by an objections officer and ultimately, the objection was disallowed on 15 December 2016.
The appellant sought an independent review by the AAT of the Department’s decision on 12 January 2017.
The AAT conducted a hearing on 12 May 2017 at which time the appellant appeared in person. Attempts were made to contact the first respondent. Ultimately, the AAT contacted the first respondent’s previous representative in Country C, Ms D. Ms D indicated that she now represented the children and not the first respondent.
In the course of the AAT proceedings, the appellant stated that the following further information emerged:
a)the Department confirmed that the Country C Human Services Department with whom the Department has been liaising about this matter, was an advocate and representative for the first respondent until 2014 and thereafter an advocate and representative for the children and was not, as the Department had understood, the Country C government department; and
b)there had in fact been further orders made in Country C in 2014 which the appellant had not been aware of and which appear to have been made ex parte (“2014 ex parte orders”).
The appellant further stated that since January 2017, she has been the subject of a DPO and therefore cannot travel to Country C to see the children. She seeks the DPO be set aside.
On 22 August 2017, the AAT set aside the Department’s decision under review and, in substitution, decided to vary the particulars of the registrable maintenance liability.
AAT decision
The AAT set out the background to this matter at [1] – [13] of its decision, and identified the relevant statutory framework relevant to the review; namely, the CSRC Act.[2]
[2] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraphs [14]-[16].
The AAT noted that the Department made a decision on ‘26 July 2006’[3] to vary the particulars of the registered maintenance liability under section 42 of the CSRC Act, which permitted the variation of particulars entered in the Child Support Register where the Child Support Registrar is satisfied that a ‘clerical error or other mistake exists’.[4]
[3] This should have been a reference to 20 July 2016.
[4] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [17].
The AAT noted that the issues before it were:
a)whether there were proper grounds to vary the overseas registered maintenance liability; and
b)if so, whether the particulars as varied were correct.[5]
[5] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [18].
The AAT considered whether the terms of the May 2004 orders provided for increased rates of child support. The AAT considered the relevant provisions of the Country C legislation and concluded that the Department’s interpretation of the May 2004 orders were consistent with those provisions. The AAT also had regard to the fact that in 2014, further court orders were made in Country C which stated that there were varying rates of maintenance owed from 2006 onwards.
On this basis, the AAT concluded that it was satisfied that the May 2004 orders required the appellant “to pay different rates of maintenance in accordance with the ages of the children”.[6]
[6] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [25].
In considering the appropriate rate of maintenance to be paid, the AAT had regard to the evidence and submissions before it. On the basis of this evidence and these submissions, the AAT noted the following concerns:
a)the Department had treated the Country C Human Services Department as the “overseas authority” for the purposes of section 4 of the CSRC Act,[7] whereas it appeared to be an advisory and advocacy body;
b)Country C Human Services Department relied on the Country C child support calculation table although that table is not legally binding and is advisory only;[8]
c)it was unclear on what basis the Department concluded that there was an obligation on the appellant to continue to pay child support beyond the children’s 18th birthdays, other than advice from Country C Human Services Department;[9]
d)the 2014 ex parte orders indicated that the first respondent was no longer the payee from the date on which the orders were made; and
e)the submissions from Country C Human Services Department suggested that the amount of maintenance payable was dependent on the appellant’s income and whether the children received Student financial aid payments.[10]
[7] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [34].
[8] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [34].
[9] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [34].
[10] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [34].
The AAT sought further submissions from the Department in relation to these issues. The further information provided by the Department is set out at [35] of its decision record.
The AAT concluded that the only clear evidence as to the proper rates of child support which applied to the appellant’s liability under the May 2004 orders was that set out in the 2014 ex parte orders. The AAT relevantly stated:
Those documents indicate that [X] and [Y] have an order in their favour for the purposes of enforcing payment of child support liability from 2007 onwards, but also provide evidence as to the amount that would have been payable under the 2004 Country C court order to Mr Lamon, prior to the 2014 orders coming into effect.[11]
[11] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [36].
As the 2014 ex parte orders do not specify what rate applied beyond 2010 and given that the Country C child support calculation table is non-binding, the AAT concluded that there was insufficient evidence to justify any further variation to the rates payable.[12]
[12] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [38].
The AAT also considered whether there was a child support liability for the children after the age of 18 years. After considering the submissions made by Country C Human Services Department and reviewing the relevant provisions of the Country C Civil Code, the AAT found that:
a)the payee under the registered maintenance order is the first respondent; and
b)the evidence indicates that he is not maintaining the children who have both left home; and
whilst a factual dispute remains as to whether the children were able to support themselves, even if the children had a claim for maintenance from one or both of their parents, that claim would not be payable to the first respondent who is the payee of the registered maintenance order.[13]
[13] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [42].
The AAT noted that under section 37 of the CSRC Act, the Child Support Registrar has the power to vary the particulars entered in the Child Support Register to reflect any ‘affecting event’ in relation to an enforceable maintenance order.[14]
[14] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [43].
An ‘affecting event’ is defined in section 4 of the CSRC Act in the following terms:
…In relation to an enforceable maintenance liability, means any event the happening of which operates, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, to vary or otherwise affect the liability or any of the particulars included in the entry in the Child Support Register in relation to the liability, and includes a terminating event in relation to the liability, but does not include:
a.the making by, or registration in, a court of an order; or
b.the registration in, or approval by, a court of a maintenance agreement.[15]
[15] Child Support (Registration and Collection) Act 1988 (Cth), s. 4.
The AAT concluded that it was not satisfied that either the May 2004 orders or the 2014 ex parte orders required the appellant to continue paying child support to the first respondent after the children turned 18 years of age. In relation to the child [X] therefore, the terminating event occurred when he turned 18 years old on … 2013.[16]
[16] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [43].
In the case of the child [Y], the AAT concluded that the terminating event occurred on the making of the 2014 ex parte orders, namely on 16 October 2014.[17]
[17] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraphs [44]-[48].
Statutory pathway
This court has jurisdiction to deal with the appeal against the AATs decision under section 44AAA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). An appeal under that section must be lodged within 28 days of the date on which the decision is given to the appellant, or such other time as permitted by the court.
An appeal must be on a ‘question of law’. The court has the power to hear and determine the appeal and may “make such order as it thinks appropriate by reason of its decision.”[18]
[18] Administrative Appeals Tribunal Act 1975 (Cth), s. 44(4).
Section 44(5) of the AAT Act goes on to relevantly state:
Without limiting by implication the generality of subsection (4), the orders that may be made by the… (Court) … on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
Section 44(7) further provides:
If a party to a proceeding before the Tribunal appeals to the (court) under subsection (1), the Court may make findings of fact if:
a.the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the Tribunal as the result of an error of law); and
b.it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:
i.the extent (if any) to which it is necessary for facts to be found; and
ii.the means by which those facts might be established; and
iii.the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and
iv.the relative expense to the parties of the Court, rather than the Tribunal making the findings of fact; and
v.the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and
vi.whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and
vii.such other matters (if any) as the Court considers relevant.
Section 44(8) of the AAT Act further provides that:
For the purposes of making findings of fact under subsection (7), the (Court) may:
a.have regard to the evidence given in the proceedings before the Tribunal; and
b.receive further evidence.
Subsection 44(10) provides that the court’s jurisdiction includes jurisdiction to make findings of fact under subsection (7).
The applicant seeks to rely on each of these provisions as the basis to her argument that if the court finds in her favour and concludes that the AAT’s decision is affected by an error of law, it ought to grant the relief she seeks.
In relation to the appellant’s appeal against the DPO, section 72D of the CSRC Act relevantly provides:
The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
a.the person has a child support liability …; and
b.the person has not made arrangements satisfactory to the Registrar for the liability to be wholly discharged; and
c.the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
i.…
ii.…
iii.one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), … or subsection 18A(4) …
iv.… and
d.the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
i.wholly discharging the child support liability .. or
ii.making arrangements satisfactory to the Registrar for the child support liability … to be wholly discharged.
Section 72D(2) then sets out various factors to which the Child Support Registrar must have regard in determining whether they are satisfied that the person has persistently and without reasonable ground failed to make the requisite payments.
Section 72Q of the CSRC Act relevantly provides that:
(1)A person aggrieved by the making of a departure prohibition order may appeal to the… Federal Circuit Court of Australia against the making of the order.
(2)…
The court, on hearing such an appeal, may:
…in its discretion:
(a) make an order setting aside the order; or
(b) dismiss the appeal.[19]
[19] Child Support (Registration and Collection) Act 1988 (Cth), s.72S.
Procedural history
The AAT handed down its decision on 22 August 2017.
The appellant commenced these proceedings on 23 March 2018, initially by filing a family law initiating application. The appellant ultimately filed the correct notice of appeal (child support) on 6 November 2018. The second respondent conceded that, for the purpose of determining the extension of time application, the court can have regard to the appellant’s initiating application, albeit incorrectly filed, on 23 March 2018.
It is common ground that the appellant filed her application out of time. The appellant sought leave to proceed notwithstanding that it was filed some six months after the expiry of the 28 day time limit.
The application for an extension of time was opposed by the second respondent.
Extension of time
As stated, the appellant seeks leave to appeal outside the 28 day statutory time limit.
In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 34, Wilcox J identified the following relevant, although non-exhaustive, factors in determining the court’s discretion to extend time (albeit under a different statutory regime):
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice to the respondents;
d)the impact on the appellant;
e)the interests of the public at large, if relevant; and
f)the merits of the substantive application.[20]
[20] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 34 at [18]-[23].
The appellant filed an affidavit in which she set out the background to the court proceedings, both in Australia and in Country C in relation to both parenting and child maintenance orders made. She deposed that she has been involved in legal proceedings since 2001. She further stated that until 2017, she was under the mistaken impression, as a result of information provided to her by the CSA, that Country C Human Services Department was the Country C government department which had the capacity to review the child maintenance orders in Country C. Consequently, she said that she has spent a number of years seeking to have those orders reviewed through negotiations with Country C Human Services Department since 2010 to no avail and, indeed it would now seem, to her prejudice.
The appellant also deposed to the fact that she has been representing herself for most of that time.
The appellant further deposed that when the AAT decision was handed down, she was suffering from the flu and sheer exhaustion at having another legal proceeding decided in the first respondent’s favour. Her evidence was that she sought legal advice from senior counsel on a pro bono basis in mid-October 2017 and there were some delays in obtaining that advice. The appellant deposed that her son [Y] then visited her in January 2018 and she did not turn her attention back to senior counsel’s request for further documents until he departed at the end of January 2018.
She ultimately filed her application seeking to challenge the AAT decision in March 2018.
The appellant also deposed that there is an arguable case sufficient to warrant an extension of time being granted and there is no prejudice to the respondents for an extension of time to be granted. The first respondent has not participated in these proceedings and therefore does not assert any prejudice.
The second respondent opposed the extension of time application on the basis that:
a)There is an inadequate explanation of the delay;
b)Although there is no prejudice asserted, that is not a determinative factor; and
c)There is no arguable case and in particular, aspects of the applicant’s appeal are without any proper basis.
On the question of the explanation for the delay, the second respondent noted that although the appellant alleged that she was unwell when she was advised of the AATs decision, she has not provided any medical evidence to support that assertion.
As to the merits of the substantive application, the second respondent submitted that:
a)In relation to grounds one to three, the appellant does not articulate the alleged ‘error or law’ with sufficient particularity to enliven the court’s jurisdiction; and
b)In relation to ground four, it was doomed to fail on the following bases:
i)to the extent that the application seeks to appeal the DPO under section 72Q of the CSRC Act, it was argued that “this is a wholly separate proceeding, involving the appellant and the Registrar and directed to entirely different questions that the s 44AAA appeal in relation to the AAT decision”;[21]
ii)in any event, under section 72Q, the appellant bears the onus to establish that the DPO was wrongly made on the basis that one of the elements required by section 72D was absent at the time the DPO was issued, and no such evidence has been led;[22] and
iii)it was further submitted that the appellant has not articulated how it is that she says that one of the essential elements in section 72D was absent at the time the DPO was issued which is required to establish that the DPO ought to be set aside.
[21] Paragraph [12] of the second respondent’s written submissions filed 28 November 2018.
[22] Jones v Child Support Registrar [2007] FCA 1732 at [6]–[9].
Extension of time consideration
In considering the merits of the case for the purposes of determining whether to grant an extension of time, the question for the court is whether there is an arguable case.
It is clear from the extensive written submissions filed in these proceedings and the oral arguments made, that the appellant has raised significant issues. For the purpose of considering whether to grant an extension of time, it is not necessary to show that the appellant will ultimately succeed on the evidence, but rather that there is an arguable case. The appellant has met that threshold.
In my view, the appellant has provided a reasonable explanation for the delay which, whilst lengthy is not inordinate. In coming to this view, I have also had regard to the fact that the AAT review process itself took some eight months to determine and there were numerous complex issues in respect of which the AAT sought additional information from the Department before making its ultimate decision in March 2017. The grounds in the notice of appeal must be read in the context of the questions of law articulated in the notice of appeal.
On balance, I am satisfied that on the facts before me, having regard to its lengthy history and the appellant’s continued attempts to rectify the overseas maintenance order since 2010, it is appropriate in all of the circumstances for an extension of time to be granted, and I so order.
Section 44AAA appeal
The notice of appeal raises the following question of law:
Whether section 42 of the Child Support (Registration and Collection) Act can be used to vary the registered maintenance liability of the Appellant to the Respondent by the substitution of amounts payable by the appellant to the respondent made under orders made on 16 October 2014 in Country C when these orders are made:
(a)ex parte
(b) with a change of payee from the Respondent to the children
(c) in breach of s 34 of the CSRC Act
(d)in denial of the rights of the Appellant under s 42D of the CSRC Act.
It then raises four grounds of appeal:
Ground one
Member B erred in law by substituting amounts of child support payable to the children as payees under an ex parte order made by the Country C Courts on 16 October 2014 for the amount of child support to be paid by the payer under the registered maintenance liability registered in April 2010.
Ground two
Member B erred in law by substituting amounts made under the 16 October 2014 ex parte orders when the payee had breached his obligations under sec 34 of the Child Support (Registration and Collection) Act in notifying the Registrar and the payer of the making of these orders.
Ground three
Member B erred in law by failing to consider the effect of 42D of the Child Support (Registration and Collection) Act and its reference to the factors to be considered in maintenance applications under the Family Law Act 1975.
I will deal with these grounds together on the basis that they are all interrelated.
It was submitted for the second respondent that grounds one to three do not identify any alleged error of law with sufficient particularity and precision.[23] The second respondent relied upon the comments of the Full Court of the Family Court in Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10, at which the Full Court summarised the applicable principles which apply to child support appeals.[24]
[23] Child Support Registrar & Crowley & Anor [2015] FamCAFC 76 at [22]–[24].
[24] Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 at [54].
As noted in Penman & Child Support Registrar [2013] FCCA 492, an alleged error of law must be stated with sufficient particularity to allow the parties and the court to understand the basis upon which it is asserted that the decision that is the subject of the appeal ought to be set aside because this ‘enlivens the court’s jurisdiction’[25].
[25] Penman & Child Support Registrar [2013] FCCA 492 at [112]–[122] and cases referred to therein.
In determining what constitutes an ‘error of law’ for the purposes of section 44 of the AAT Act, the appellant referred to the majority of the Full Court in Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FC 410 in which the majority stated:
What is ‘on a question of law’ for the purposes of s 44 of the AAT Act has been analysed in many cases and includes:
(1)whether the AAT has identified the relevant legal test…;
(2)whether the AAT has applied the correct test…;
(3)whether there is any evidence to support a finding of a particular fact…; and
(4)whether facts found fall within a statute properly construed…[26]
[26] Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FC 410 at [13].
The appellant argued that (3) and (4) are relevant in this case.
I am satisfied that when one considers the appeal grounds in the context of the question of law stated, it is clear that the appellant’s complaint is that the substitution of the amounts contained in the 2014 ex parte orders by the AAT constitutes an error of law, in circumstances where:
a)the 2014 ex parte orders were made ex parte;
b)the 2014 ex parte orders make the children the payees rather than the first respondent;
c)this was an ‘affecting event’;
d)in breach of section 34, no notice was given to the Child Support Registrar of this affecting event; and
e)the Department did not provide the appellant with the requisite notice under section 42D.
The argument in relation to section 34 is misconceived. Section 34 of the CSRC Act does not apply to a registrable overseas maintenance liability.[27]
[27] section 34(5) of the CSRC Act
It is common ground that the appellant only became aware of the 2014 ex parte orders in the course of the AAT review proceedings in 2017. It is also not disputed that consequently, the appellant was not given notice of the proceedings which led to the making of the 2014 ex parte orders.
Section 42D of the CSRC Act relevantly provides:
(1)In the case of a registrable overseas maintenance liability, a notice served on a person under section 42C must, if the reciprocating jurisdiction in which the liability arose provides for review of the liability, include, or be accompanied by, a statement to the effect that a person aggrieved by the decision notified under that section may seek review of the liability by a judicial or administrative authority of the Jurisdiction.
(2)If the registrable maintenance liability:
(a)arises under a maintenance order made by a judicial authority of a reciprocating jurisdiction …
(b)…
Subsection (3) and (4) also apply in relation to the notice given under section 42C.
(3)The notice served under section 42C on a person against whom the maintenance order or assessment was made must also include, or be accompanied by:
(a)if the person:
(i) did not have notice of the proceedings giving rise to the maintenance order or assessment; and
(ii) did not appear in those proceedings; and
(iii) did not consent to the making of the maintenance order or assessment;
a statement to the effect that if the person makes an application under subregulation 36(2) of the Family Law Regulations 1984, the person may raise any matter that the person could have raised under Part VII or VIII of the Family Law Act 1975 if the proceedings giving rise to the maintenance order or assessment had been heard in Australia; or
…
Section 42C of the CSRC Act relevantly provides:
(1)As soon as practicable after the Registrar:
(a)registers a registrable maintenance liability under this Act; or
(b)varies particulars entered in the Child Support Register in relation to a registrable maintenance liability;
the Registrar must serve on the payer and payee of the liability a notice in writing of the particulars entered in the Child Support Register in relation to the liability, unless notice of those particulars has already been given to the payer and the payee under the Assessment Act.
It was submitted that as a result of the failure to comply with section 42D of the CSRC Act, the appellant was denied the opportunity to seek to challenge the 2014 ex parte orders. It was further submitted on behalf of the appellant that had she been given proper notice, the appellant could have made an application under section 66K of the Family Law Act 1975 (Cth) which allows the court to consider “any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship”.
In this case, the appellant argued that one such consideration was the cost of travel for the appellant to maintain a relationship with her children in circumstances where they lived in Country C and she had no residency rights in that country.
It was therefore argued on behalf of the appellant that AAT acted arbitrarily in simply adopting the amounts specified in the 2014 ex parte orders as the rates by which the 2004 rates ought to be varied and this constitutes an error of law. It effectively removed the appellant’s right to seek to have some input into the terms of those orders.
It was said on behalf of the appellant that the arbitrary nature of the AATs decision is further highlighted when considering the appellant’s evidence that at the AAT hearing, Country C Human Services Department offered to halve the amount specified in the 2014 ex parte orders.[28]
[28] Affidavit of Ms Lamon sworn 17 and filed 18 October 2018 at paragraph [13].
Consideration of grounds one, two and three
For the following reasons, I do not find that the AATs reasoning discloses any such error.
It is clear from the AATs reasons, when read in their entirety, that they acknowledge that the 2014 ex parte orders do not have any particular legal status in Australia. It noted that the 2014 ex parte orders state that “a subrogation clause has been granted to the petitioning party and the person to whom the order was granted.”[29] It was on this basis that the AAT concluded that in the case of [Y], the making of the 2014 ex parte orders constituted a terminating event even though he had not yet reached 18 years of age.[30]
[29] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [45].
[30] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [46].
When read fairly in the sense contemplated in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6, it is apparent, and I find, that the AAT had regard to the content of the 2014 ex parte orders simply as evidence of what amounts would have been payable to the appellant’s children over the period from 10 February 2010 under the May 2004 orders. The AAT did not treat the 2014 ex parte orders as enforceable orders in Australia and it was not on that basis that an amendment was made to the Child Support Register. Rather, the AAT had regard to the content of the 2014 ex parte orders as evidence of the variations which ought to be made to the May 2004 orders. So much is evident from the AATs refusal to accept the Department’s submission that it ought to simply amend the name of the payee on the Child Support Register from the first respondent to each of the children. The AAT noted, “A payee must make their own application for registration of an enforceable maintenance liability”.[31]
[31] Annexure 7 of the affidavit of Ms Lamon sworn 3 and filed 4 July 2018 at paragraph [47].
As noted in Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297, “it was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight”.[32] The content, as opposed to the fact, of the 2014 ex parte orders was relevant to the question of what payments ought to have been made under the 2004 orders. It was open to the AAT to have regard to that information in determining whether it was appropriate to make any adjustment to the Child Support Register and, if so, what adjustment to make. The circumstances in which the 2014 ex parte orders were made does not alter this conclusion.
[32] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5].
To accept the appellant’s argument would involve the court engaging in impermissible merits review.
Nor am I satisfied that there was a failure to comply with section 42D as alleged or that any such breach could be said to lead to a conclusion that the decision of the AAT is affected by an error of law.
As noted by the second respondent:
a)the Child Support Registrar received the 2014 ex parte orders on 4 July 2016;
b)the Child Support Registrar then varied the particulars of the Child Support Register and as required by section 42C and 42D notified the appellant by letter dated 20 July 2016 and 21 July 2016;[33] and
c)this correspondence meets the requirements of section 42C and 42D.
[33] Annexures TL-2 and TL3 of the affidavit of Ms Lamon sworn and filed 23 March 2018.
In reply, the appellant submitted that this misconstrues the evidence. It was submitted that in fact, whilst the Child Support Registrar received the 2014 ex parte orders on 4 July 2016, it did not act on these but acted on the basis of the Country C child support calculation table, which provided for the child support to continue beyond each child attaining the age of 18 years. It was therefore submitted that the correspondence from the Child Support Registrar dated 20 and 21 July 2016 cannot be said to comply with the requirements of section 42C and section 42D.
Section 42C requires that the Child Support Registrar issue a notice in the required terms when it either registers a registrable maintenance liability or varies the particulars entered in the Child Support Register. In this case, there was a variation of the particulars entered in the Child Support Register and the Child Support Registrar issued a notice to the appellant. The appellant was advised of these changes by letter dated 20 July 2016.[34]
[34] Annexure TL-3 of the affidavit of Ms Lamon sworn and filed 23 March 2018.
There was no reference to the 2014 ex parte orders in that correspondence because the Department was not exercising any powers in relation to those orders. It was simply amending the Child Support Register to reflect what is considered to be the correct amounts payable under the May 2004 orders and notifying the appellant of those changes as required.
In any event, even if contrary to the views expressed above, it could be said that the Department made an error in not advising the appellant of the making of the 2014 orders in its correspondence on 20 July 2016, ultimately, the decision which is the subject of this appeal is the AAT decision made on 22 August 2017, not the primary decision of the Department.
I am satisfied that the AAT, in coming to its decision about what, if any variation to the Child Support Register ought to be made, had regard to the content of the 2014 ex parte orders. For the reasons set out above, this does not give rise to an error of law. Any failure on the part of the CSA to give notice under either section 42C or section 42D does not alter this position. As stated above, it was open to the AAT to have regard to the content of the 2014 ex parte orders in determining what, if any, adjustment to the Child Support Register was required.
To the extent that it was suggested that an alleged breach of section 42D gives rise to an error of law, that has not been made out.
It is not open to this court to determine whether faced with that evidence, the AAT would have come to the same or a different conclusion. To do so would be to engage in impermissible merits review.
For each of these reasons, grounds one to three have not been made out.
Consideration of ground four
The fourth ground of appeal is:
The making of a Departure Prohibition Order against the Appellant ought to be set aside given the Notice of Decision and AAT decisions that create arrears against her are in error.
For the reasons set out above, I am not satisfied that the AATs decision was affected by an error of law.
Moreover, in this case, it is clear that at the time that the DPO was made:
a)the appellant was the subject of a child support liability;
b)the appellant had not identified which of the factors in section 72D did not exist to enable the Child Support Registrar to have the requisite belief as to their existence; and
c)the appellant had not established that there were no reasonable grounds for the Child Support Registrar to have the requisite belief required.
As noted in Jones v Child Support Registrar [2007] FCA 1732:
In an appeal under s 72Q of the Act, the person aggrieved must establish that the order was wrongly made. That may be done by satisfying the Court that any one of the essential elements of s 72D is absent. However, the Registrar bears no onus of establishing the validity of the order.[35]
[35] Jones v Child Support Registrar [2007] FCA 1732 at [5].
At the time the DPO was made, the appellant was the subject of a child support liability. By this appeal, she challenges the variation to that liability made in July 2016. However, on the basis of the appellant’s own evidence even prior to the variation, the appellant had an outstanding child support liability of over $22,000.[36]
[36] Annexure TL-2 of the affidavit of Ms Lamon sworn and filed 23 March 2018.
There is no other evidence that the AAT made any other error in the granting of the order.
For these reasons, there is no proper basis upon which the court may set aside the DPO as sought.
Conclusion
As each of the appellant’s grounds of appeal have not been made out, I make the following orders:
a)An extension of time be granted; and
b)The appeals be dismissed.
Costs
The second respondent sought costs fixed in the sum of $7,200 in accordance with the scale at Schedule 1, Part 2, Division 2 of the Federal Circuit Court Rules 2001 (Cth).
The appellant opposed any costs order being made. It was submitted that the court has a discretion as to whether costs ought to be ordered in a case such as this, pursuant to section 79(3) of the Federal Circuit Court of Australia Act 1999 (Cth). It was submitted that discretion ought to be exercised in favour of the appellant on the basis of special circumstances; namely that:
a)the applicant has been the subject of repeated bureaucratic mistakes by the second respondent; and
b)the first respondent who is entitled to any unpaid child support is not pursuing the money.
Moreover, unlike many child support appeals in this jurisdiction, the children in this case, who are now adults, are not being funded by the Australian taxpayer.
It was submitted that in each of those circumstances, the court ought not award costs in this case.
Whilst conceding that the court has a discretion in relation to whether to award costs, the second respondent argued that in this case the court ought not exercise that discretion in favour of the appellant. It was submitted for the second respondent that the appellant had the opportunity to pursue other avenues of redress in relation to this matter, including an application under the Family Law Regulations 1984. Having chosen to bring these proceedings, the second respondent has incurred costs and costs should follow the event.
On balance, I am satisfied that there are special circumstances in this case which would warrant a departure from the court’s usual practice in this jurisdiction to order costs.
The appellant on her own evidence, which is unchallenged, has sought advice from the Department as to how to address the fact that the orders made in Country C did not take into account her financial position on her return to Australia since they were first registered in 2010, including the significant costs of travel back to Country C to maintain a relationship with her children.
It is also clear from the evidence before this court, and indeed from the AATs decision itself, that until 2017, the Department had understood and had advised the appellant that the Country C Human Services Department was the overseas authority for the purposes of registrable overseas maintenance liabilities. As a result of this misinformation, the appellant’s position in relation to the May 2004 orders appears to have been compromised.
Whilst it is true that the appellant has pursued this claim which has ultimately proven to be unsuccessful, the second respondent’s conduct has contributed to the situation which has led to these proceedings. In all of these circumstances, I am satisfied that it is appropriate for the court to exercise its discretion and make no order as to costs.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 2 August 2019
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