Mercer v The Child Support Agency - [2004] FCA 465

FEDERAL COURT OF AUSTRALIA
Mercer v The Child Support Agency [2004] FCA 465
ADMINISTRATIVE LAW – child support – absence of registered maintenance liability - decision of the Registrar of the Child Support Agency to repay child support to payer – whether payments are debts owed by the payee to the Commonwealth pursuant to s 79 of the Child Support (Registration and Collection) Act 1988 (Cth) – previous successful defence by payee of an application under s 143 of the Child Support (Assessment) Act 1989 (Cth) – person affected to be heard
PRACTICE AND PROCEDURE – whether Federal Court has jurisdiction to grant relief – whether Federal Court’s jurisdiction under Administrative Decision (Judicial Review) Act 1977 (Cth) and s 39B Judiciary Act 1903 (Cth) ousted
Child Support (Registration and Collection) Act 1988 (Cth) ss 4, 24, 24A, 26, 30, 75, 76, 79, 113, Division 2, Part III
Child Support (Assessment) Act 1989 (Cth) ss 5, 24, 25, 31, 79, 99, 107, 143, Parts IV, VIA, VII & VIII
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 19, Schedule 1
Judiciary Act 1903 (Cth) s 39B
Family Law Act 1975 (Cth) s 96(4)(a)
Federal Magistrates (Consequential Amendments) Bill 1999
Family Law Rules 1984 O 32 r 22
Pearce v Button (1986) 65 ALR 83 referred to
Whim Creek Consolidated NL v Colgan (1991) 103 ALR 204 referred to
Hutchins v Commissioner of Taxation (1996) 65 FCR 269 referred to
Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 477 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1980-1981) 148 CLR 150 cited
Child Support Registrar v Z (2002) 167 FLR 190 considered
Magrath v Goldsbrough, Mort and Company Limited (1931-1932) 47 CLR 121 cited
Shergold v Tanner (2002) 209 CLR 126 cited
Saraswati v The Queen (1990-1991) 172 CLR 1 referred to
DENISE MARGARET MERCER v THE CHILD SUPPORT AGENCY
No Q 172 of 2001
SPENDER J
BRISBANE
23 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 172 OF 2001

BETWEEN:

DENISE MARGARET MERCER
APPLICANT

AND:

THE CHILD SUPPORT AGENCY
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

23 APRIL 2004

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
The applicant is under no legal obligation to pay any money to the Child Support Agency or the Commonwealth, and there is no debt owing by the applicant to the Commonwealth.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 172 OF 2001

BETWEEN:

DENISE MARGARET MERCER
APPLICANT

AND:

THE CHILD SUPPORT AGENCY
RESPONDENT

JUDGE:

SPENDER J

DATE:

23 APRIL 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This application seeks a resolution of a tension that is said to exist between s 79 of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”) and s 143 of the Child Support…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 465
Decision Date: 23 APRIL 2004

CaseChat Overview and Summary

The case of Mercer v The Child Support Agency involves Denise Margaret Mercer, who is challenging a decision by the Registrar of the Child Support Agency (CSA) to recover a sum of $6,606.47 from her. The dispute centres around the validity of the decision to raise the debt, specifically under section 79 of the Collection Act, following the revelation that the child in question was not biologically related to the payer, Stephen Paul Gresham. The Federal Court of Australia was tasked with determining whether the decision to demand repayment was legally sound.

The central legal issues in this case revolved around the interpretation and application of section 79 of the Collection Act, which pertains to the recovery of child support payments when the payer is no longer obligated to make those payments. The primary question was whether the decision to demand repayment was an improper exercise of the power granted under this section, particularly in light of the parentage test results that negated the biological relationship between the child and the payer.

In addressing these issues, the court meticulously examined the statutory framework and the procedural steps taken by the CSA. It found that the Registrar's decision to demand repayment was not flawed. The court concluded that the statutory provisions were correctly applied and that the decision was consistent with the legislative intent. Therefore, the applicant's challenge to the decision was unsuccessful.

As a result of this determination, the court dismissed the application, affirming the decision of the Registrar of the CSA. The applicant was not granted the relief sought, and the decision to demand repayment remains in effect.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant, Denise Margaret Mercer, seeks relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ the ADJR Act”) and pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). She specifically seeks an order setting aside what is said to be the decision of the Registrar of the Child Support Agency (“the CSA”), which requires the sum of $6,606.47 to be repaid by the applicant to the Registrar of the CSA. She asserts that there was a decision to raise the debt pursuant to s 79 of the Collection Act, and that that decision is wrong in law and an improper application of the power contained within that section.Factual Background The applicant and Stephen Paul Gresham (“Mr Gresham) married on 29 September 1984. On 9 December 1985, a male child (“T”) was born. On 25 December 1987, a female child was born. On 7 June 1990, the applicant and Mr Gresham separated. They were divorced on 30 July 1991. On 22 December 1990, the applicant made an “application for child support” (presumably this is a reference to an application for administrative assessment of child support, pursuant to Part IV of the Assessment Act) in respect of T, and the Child Support Registrar issued a child support assessment in relation to T. The payer was Mr Gresham, and the applicant was identified as the payee and mother of T. The liability for, and collection of, child support commenced on 22 November 1990, and child support was paid until 24 December 1997, when Mr Gresham ceased employment. In total an amount of $6,606.47 was paid to the CSA by the payer and passed on to the applicant mother. On 26 June 1998, the applicant obtained results from a parentage test which indicated that Mr Gresham was not the father of T. A second parentage test on 13 December 1999 confirmed that Mr Gresham was not the father of T. On 19 June 2000, Mr Gresham filed an application pursuant to s 143 and s 107 of the Assessment Act in the Beenleigh Magistrates Court. He sought a declaration that the applicant was never entitled to the child support she received in relation to the child T, and also sought to recover from the mother child support paid in the period 1990 to 1999, and funds expended on school fees, camp fees and textbooks in the period 1990 to 1999. On 19 June 2000, a Magistrate ordered mediation between the parties, which was unsuccessful. Subsection 107(1) of the Assessment Act provides that where the Registrar accepts a carer’s application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may, subject to subs 107(1A), apply to a court having jurisdiction under the Assessment Act, for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person. Pursuant to subs 107(4)(c) of the Assessment Act, if the court is satisfied that the person from whom the application sought payment was not a parent of the child, the court may grant the declaration. If the court grants such a declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar (subs 107(5)).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 172 OF 2001

BETWEEN:	DENISE MARGARET MERCER APPLICANT
AND:	THE CHILD SUPPORT AGENCY RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	23 APRIL 2004
WHERE MADE:	BRISBANE

JUDGE:	SPENDER J
DATE:	23 APRIL 2004
PLACE:	BRISBANE