M and C
[2002] FMCAfam 57
•6 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & C | [2002] FMCAfam 57 |
| CHILD SUPPORT – Jurisdiction – failure to apply for administrative departure – failure to object. Child Support (Assessment) Act 1989 ss.115, 116. |
Lightfoot v Hampson (1996) FLC ¶ 92-663
Reid v Reid (1999) FLC ¶98-007
Kness v Kness (2000) FLC ¶98-013
| Applicant: | S L M |
| Respondent: | S A C |
| File No: | ZH 2720 of 2001 |
| Delivered on: | 6 February 2002 |
| Delivered at: | Hobart |
| Hearing Date: | 5 February 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. Fitzgerald |
| Solicitors for the Applicant: | Director of Legal Aid |
| Counsel for the Respondent: | Mr. Geason |
| Solicitors for the Respondent: | Butler McIntyre & Butler |
ORDERS
That the application filed by S L M on 25 July 2001 be dismissed.
That the orders made on 27 July 2001 and 23 November 2001 be discharged.
That the matter be removed from the active pending cases list.
That the husband's costs application be adjourned to the sittings commencing 25 February 2002 at 10 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
ZH 2720 of 2001
| S L M |
Applicant
And
| S A C |
Respondent
REASONS FOR JUDGMENT
Background
In this matter the applicant is S L M (formerly C) and the respondent is S A C. For convenience I shall refer to them simply as the Husband and the Wife.
The application before the Court is a Form 63 Application filed on 25th July 2001, and it seeks the following:
a)that pursuant to Division 5 Part 7 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support relating to the children E J C, born 23 February 1992, S J C, born 8 October 1993 and S J C, born 28 March 1996;
b)that the annual rate of child support payable by the respondent to the applicant in respect to the children be set at $10,500 per annum, commencing on 26 July 2001 until 23 February 2010, being the date when E J C turns 18 years of age, or at such other annual rate and/or for such other period as determined by this Honourable Court;
c)that pursuant to Division 5 Part 7 of the Child Support (Assessment) Act 1989 the respondent provide child support for the children otherwise than in the form of periodic amounts paid to the applicant;
d)that the child support payable by the respondent determined pursuant to paragraph (b) herein be capitalised and paid by the respondent to the applicant as a lump sum within 28 days of the making of final orders;
e)such further or other orders and determination as the Court considers appropriate, including statements under section 125 of the Child Support (Assessment) Act 1989;
f)that a sealed copy of the order herein be served on the Deputy Registrar of Child Support in Hobart;
g)that the respondent pay the applicant's costs of those proceedings.
The applicant also sought certain interim procedural orders. Indeed, interim orders of an injunctive nature, or including orders of an injunctive nature, were made on 27 July 2001 by Federal Magistrate Connolly.
The husband seeks in his response simply that the application be dismissed and the interim orders made by Federal Magistrate Connolly on 27 July 2001 be discharged.
At the outset yesterday I raised the issue that the Court may not have jurisdiction in the matter. This is because of the provisions of Division 4 of Part 7 of the Child Support (Assessment) Act 1999.
The law
The relevant parts of s.115 are:
(b) where the child support is for a period beginning on or after
1 July 1992 and the Registrar has either made or refused to make a determination under Part 6A in relation to the child; or(c) where the child support is for a period beginning on or after 1 July 1992 and:
(i) the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and
(ii) the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to the child in the special circumstances of the case;
and s.116(1A) provides as follows:
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) an objection to the making of, or the refusal to make, the departure determination has been lodged under section 98X; and
(b) the Registrar has either disallowed the objection or has allowed it in whole or in part.
However subsection 116(1B) provides that 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.
I was referred by counsel for the Wife to Lightfoot v Hampson (1996) FLC ¶ 92-663 which was decided by the Full Court of the Family Court of Australia. As that case also involved an earlier application and a decision that was appealed against, and the appeal was still pending, it is very easily distinguishable from this case on the facts.
In Reid v Reid (1999) FLC ¶98-007, also decided by the Full Court of the Family Court of Australia, the Chief justice said (at paras 45 to 48 inclusive):
“It is quite clear, in my view, that the intention of the Legislature was that this Part was to provide a summary and inexpensive procedure to enable child support departure orders to be made, without the necessity for protracted Court proceedings.
The wife, in this case, chose by the filing of a Form 63 to effectively ignore the provisions of Part 6A, and to proceed to make a departure application to the Court. The husband, in my view, was perfectly entitled to take the view that this measure had been inserted into the Act to enable these matters to be resolved without the necessity for expensive litigation. It is also quite clear that that was the view also taken by the legislature, when it enacted section 115, which was also substituted by Act No. 151 of 1992, and subsequently amended in 1995.
The intention of the legislature was that the departure order would normally only be dealt with in circumstances described under section 115(b) - where there had been either the making or refusal of a determination by the Registrar under part 6A. Section 115(c) was, however, introduced with the very sensible object of enabling the Court, in special circumstances, to deal with a departure application at the same time as other litigation already before the Court.
In this case, as at 30 January 1998, it is quite clear that there was no other matter before the Court, other than the Form 7, which certainly would not have been dealt with together with this application. His Honour therefore, at that stage, had no jurisdiction to entertain the matter.”
Their Honours Ellis and Steele JJ agreed with the Chief Justice’s reasons. In other words, it was a unanimous decision.
I draw counsels’ attention to the words “at the same time as other litigation already before the Court” in the Chief Justice’s judgment and stress the word “already”.
In my view, it is ludicrous to say that an application for orders under Division 5, filed as part and parcel of the same application for orders under Division 4, creates a “pending” application for the purposes of s.115(c).
To say otherwise would negate the intentions of the Federal Parliament. It should never be forgotten that Parliament enacts the laws of this country and the Courts simply apply or interpret them.
In this particular case, it is quite clear that there were no proceedings whatsoever “pending” at the time that the applicant filed her application on 25th July 2001.
It should also be remembered that s.115(c) provides that the Court must be satisfied that it would be in the interest of both the children’s carer and the liable parent for the Court to consider the current application at the same time as it hears any pending application. But, as I have said, there is no pending application in this matter.
Counsel for the Wife asked me to allow him to sever his client’s application pursuant to Division 5, so that the Wife could simply abandon the claim under Division 4. I cannot do that.
It is quite obvious that the Wife’s claim under Div 5 is entirely dependent upon her claim under Div 4. Her application reads in paragraph (d) “that the Child Support payable …… pursuant to paragraph (b) herein be capitalised” and it is quite clear that the application in para (b) is an application for a departure under Division 4. It follows that I find that paragraphs (c), (d) and (e) of her application do not stand alone, and consequently, they must stand or fall with paragraphs (a) and (b).
I find that the Court does not have jurisdiction in this matter. That is because the applicant was unable to comply with the provisions of section 116 of the Child Support (Assessment) Act 1989.
In this regard, I refer also to the decision in Kness v Kness (2000) FLC ¶98-013. In that case, Kay J said at paragraph 8: “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.”
In the circumstances of this case the only order that I can make in this matter is to dismiss the application file on 25 July 2001 in its entirety, because it is conceded that no departure application was made to the Child Support Agency, and no objection has been lodged. It follows also that I must discharge the interim orders made on 27 July 2001.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Roberts FM
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