Leigh and Watson
[2011] FMCAfam 238
•21 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEIGH & WATSON | [2011] FMCAfam 238 |
| CHILD SUPPORT – No appearance by either party – Court satisfied both parties were given notice of the listing – no reasonable prospect of successfully prosecuting claim. |
| Child Support (Assessment) Act 1989 (Cth), Divs.3 & 4 Child Support (Registration and Collection) Act 1988 (Cth), s.68 Federal Magistrates Court Rules 2001 (Cth), rr.13.03A, 13.03B, 13.10 |
| Hacherl & Berrios [2010] FMCAfam 668 Wreford & Caley [2010] FamCAFC 21 |
| Applicant: | MR LEIGH |
| Respondent: | MS WATSON |
| File Number: | HBC 431 of 2007 |
| Judgment of: | Roberts FM |
| Hearing date: | 10 February 2011 |
| Date of Last Submission: | Not applicable – no appearances |
| Delivered at: | Launceston |
| Settled Reasons delivered on: | 21 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable – no appearances |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Not applicable – no appearances |
| Solicitors for the Respondent: | Not applicable |
ORDERS
That the Amended Application filed 15 October 2010 is dismissed.
IT IS DIRECTED
That a copy of these Orders be forwarded to the Child Support Agency in Hobart.
THE COURT NOTES
That when this matter was called neither the applicant nor the respondent appeared.
That the Court is satisfied that both parties were given notice on 29 November 2010 of the listing of the matter for hearing.
That pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 the Court is satisfied, in any event, that the applicant has no reasonable prospect of successfully prosecuting his claim.
IT IS NOTED that publication of this judgment under the pseudonym Leigh & Watson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBC 431 of 2007
| MR LEIGH |
Applicant
And
| MS WATSON |
Respondent
SETTLED REASONS FOR JUDGMENT
In this matter the applicant seeks order as follows:
1. The court make an Order pursuant to section 116 to vary the Applicant’s Assessment for period of an order varying the annual rate of child support payable by a parent in tax years ending 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004, 30 June2005; and
2. The court make an Order pursuant to section 118 to vary the Applicant’s child support income for tax years ending 30 June 2001, 30 June 2002, 30 June 2003, 30 June 2004 and 30 June 2005;
And/Or
3. The court grant leave under section 111 of the Child Support (Assessment) Act 1989 for the Registrar to make a determination under section 98S or the court make an Order under section 118 to amend the Applicant's administration assessment by varying the Applicant's Assessment for years ending 30 June 2004 and June 2005; and
4. The court make an Order pursuant to section 116 to vary the Applicant's Assessment for period of an order varying the annual rate of child support payable by a parent in tax years ending 30 June 2001, 30 June 2002 and 30 June 2003.
And
5 The Court discharge the late payment penalties or part of the late payment penalties payable by the Applicant pursuant to the Amended Assessment.
In open court on 29 November 2010 I set this matter down for hearing in Launceston at 10.00 a.m. on Thursday 10 February 2011. The applicant was in court at that time appearing unrepresented. The respondent did not appear on 29 November 2010. However, I directed her to file and serve a Response, Affidavit and Financial Statement on or before 27 January 2011 and I made a further direction “that my Deputy Associate make efforts to telephone the respondent to inform her of these Orders”.
I note that the court file contains a file note by my Deputy Associate which reads as follows:
Rang Ms Watson at approx 2:15 pm on Monday 29 November 2010 on her mobile phone [number omitted]. She was informed that her next hearing of this matter is on 10 February 2011 at 10 am as a defended matter. She was also informed that she is required to file and serve a response, affidavit and financial statement before 27 January 2011.
Ms Watson queried as to why the Child support agency were not appearing and was informed that they were no longer a party to the proceedings and it is now between Mr Leigh and herself. She is currently travelling around Australia.
Sealed copies of my orders and directions of 29 November 2010 were also forwarded by mail to the last known addresses of both parties.
I am therefore satisfied that both parties were aware of the listing of this matter for a defended hearing in Launceston at 10 a.m. on Thursday 10 February 2011
The respondent has not filed any documents in relation to this application.
When the matter was called at 10.00 a.m. on 10 February 2011, neither the applicant nor the respondent appeared.
Rule 13.03A(1) of the Federal Magistrates Court Rules 2001 (“the Rules”) provides inter alia that an applicant is in default if he or she fails to prosecute the proceeding with due diligence. Clearly, not appearing at the time that his application was set down for hearing, was prima facie evidence that the applicant was not prosecuting the proceeding with due diligence and was therefore in default in accordance with Rule 13.03A.
Rule 13.03B of the Rules provides that, if an applicant is in default, the Court may dismiss the application.
Further, Rule 13.10 of the Rules provides that the Court may order that a proceeding be dismissed generally if the Court is satisfied that “the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim”. In this matter, I conclude that the applicant has no reasonable prospect of successfully prosecuting these proceedings for the reasons set out below.
As I understand the applicant’s case, he wants to have his Child Support for the years ending 30 June 2002 to 2005 inclusive re-assessed on the basis of amended income tax assessments for those years received by him in March 2009. In other words, he wants me to enable re-assessments for the period 1 July 2001 and 30 June 2005. He also wants me to discharge late payment penalties.
Sub-section 111(1) of the Child Support (Assessment) Act 1989 (“the Act”) provides:
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.
The application in this matter was filed on 23 July 2010 (and a subsequent amended application was filed on 15 October 2010). I am therefore of the view that the 7 year period referred to in section 111 of the Act prevents me from dealing with child support payable before
24 July 2003 under that section.
Material filed by the applicant shows that his annual taxable income between 24 July 2003 and 30 June 2004 was $41,868, and his annual taxable income between 1 July 2004 and 30 June 2005 was $30,572. Those taxable income assessments were reductions upon re-assessment from $62,668 and $50,122 respectively[1] and I presume that the applicant believes that his Child Support for those periods should also be reduced.
[1] See Annexures “F” and “G” to the applicant’s affidavit filed 23 July 2010.
The applicant does not provide any evidence of the income levels upon which his Child Support assessments were actually based. However, information is on the Court file as a result of earlier proceedings.[2] The earlier affidavits of Ms H shows that the applicant’s Child Support liabilities for particular periods were assessed on his Child Support Incomes as follows:
[2] For authority for the Court to have regard to other affidavits on the Court file, see Wreford & Caley [2010] FamCAFC 21,
2 July 2003 to 30 November 2003 $21,371 1 December 2003 to 28 February 2005 $22,172 1 March 2005 to 31 May 2006 $23,981
Clearly, his actual taxable incomes for the periods shown paragraph 14 above were significantly higher than the income levels upon which his liability for Child Support was assessed as shown in paragraph 15. In short, it appears on the only evidence available to me that if the applicant’s liability for Child Support had been assessed upon his actual taxable incomes, his Child Support liability would have been even greater.
However, even if I am wrong about the above, it is clear that the powers to grant relief found in Divisions 3 and 4 are discretionary and relief must only be granted if that relief is considered to be “just and equitable” and “otherwise proper”. In my view, I would be hard pressed to see justice and equity in granting relief in a situation where the applicant’s complaints about the assessment of his Child Support liability have been brought about solely because:
a)he failed to lodge tax returns for many years; and
b)even when he did, they were inaccurate and he needed to lodge amended returns.
In Hacherl & Berrios I said this:[3]
The law obliges all of us to keep our taxation affairs in order and to lodge income tax returns on time on an annual basis, so it should not be seen as a virtue to lodge income tax returns simultaneously for seven separate years. In my view, the father must be seen as the author of his own misfortune in relation any difficulties that the CSA may have had in assessing child support prior to the time that his tax assessments were available.
[3] Hacherl & Berrios [2010] FMCAfam 668 at paragraph 35
In my view, the applicant in this matter is also the author of his own misfortune (if he has in fact suffered any misfortune in relation to Child Support assessments), and the respondent ought not to be disadvantaged by the applicant’s past inaction.
It is for the same reason that I would not be inclined to discharge late payment penalties even if I had the power to do so. However, I do not believe that I have the power to discharge late payment penalties. Section 68 of the Child Support (Registration and Collection) Act 1988 gives the Child Support Registrar the power to remit any such penalties.
I had read the file before it came on for hearing and had made notes about the matters set out above. It had been my intention to raise them with the applicant at the hearing but that was not possible, because he did not appear at Court at the appointed time.
The application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 21 March 2011
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