Montgomery v Child Support Registrar

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FEDERAL COURT OF AUSTRALIA

Montgomery v Child Support Registrar [2015] FCA 891

Citation: Montgomery v Child Support Registrar [2015] FCA 891
Parties: DAVID MONTGOMERY v CHILD SUPPORT REGISTRAR
File number: QUD 655 of 2014
Judge: RANGIAH J
Date of judgment: 21 August 2015
Catchwords:

ADMINISTRATIVE LAW – application to set aside Departure Prohibition Order – whether order properly made – whether Child Support Registrar failed to notify applicant – whether order subjects applicant to slavery, servitude and forced labour under Criminal Code Act 1995 (Cth) – where alleged that order inconsistent with international treaty obligations – where alleged that order inconsistent with Magna Carta – application dismissed

PRACTICE AND PROCEDURE – Part 22 Admissions – notice to admit facts – whether failure to dispute matters alleged amounts to admission – where notice to admit includes matters of law – no requirement to file notice of dispute – matters not taken to be admitted

Legislation: Child Support (Registration and Collection) Act 1988 (Cth) ss 72D, 72E, 72F, 72G, 72H, 72Q, 111 and 116
Child Support (Registration and Collection) Regulations 1988 (Cth) regs 14(1), 15(1) and 15(2)
Criminal Code Act 1995 (Cth) ss 10.5, 270.3, 270.5, 270.6A and 274.2 (of the Criminal Code)
Federal Court Rules 2011 (Cth) r 22.01, 22.02, 22.04
Cases cited:

Buluma v Child Support Agency [2011] FCA 486 cited

Chia Gee v Martin (1905) 3 CLR 649; HCA 70 cited

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 cited
Jones v Child Support Registrar [2007] FCA 1732 cited
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; HCA 20 cited

Skyring v ANZ Banking Group Ltd [1994] QCA 143 cited

Whittaker v Child Support Registrar (2010) 264 ALR 473; FCA 43 cited
Whittaker v Child Support Registrar [2010] FCAFC 112 cited

Date of hearing: 2 April 2015
Place: Brisbane
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Ms F Dempsey of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 655 of 2014
BETWEEN:

DAVID MONTGOMERY
Applicant
AND:

CHILD SUPPORT REGISTRAR
Respondent

JUDGE:

RANGIAH J

DATE OF ORDER:

21 AUGUST 2015

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The name of the respondent be amended to “Child Support Registrar”.

2.The originating application is dismissed.

3.The applicant pay the respondent’s costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 655 of 2014
BETWEEN:

DAVID MONTGOMERY
Applicant
AND:

CHILD SUPPORT REGISTRAR
Respondent

JUDGE:

RANGIAH J

DATE:

21 AUGUST 2015

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. On 19 March 2014 a delegate of the respondent made a Departure Prohibition Order (“DPO”) against the applicant pursuant to s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Child Support Act”). On 1…

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Details
Case
[2015] FCA 891
Decision Date

CaseChat Overview and Summary

Montgomery brought an application against the Child Support Registrar seeking to set aside a Departure Prohibition Order. The application was dismissed by the Federal Circuit Court. The applicant alleged that the order was inconsistent with his rights under various international treaties, including the Universal Declaration of Human Rights and the Magna Carta. He also argued that the order was inconsistent with his rights under the Criminal Code Act 1995 (Cth) because it amounted to slavery, servitude, or forced labour. The applicant claimed that he had not been properly notified of the making of the order, and that the order had not been made in accordance with the principles of natural justice.

The court first considered the applicant’s argument that he had not been properly notified of the making of the Departure Prohibition Order. The court noted that the applicant had not provided any evidence to support this claim, and that there was no requirement for the applicant to file a notice of dispute in response to the notice to admit facts. The court held that the applicant’s failure to dispute the matters alleged in the notice to admit facts did not amount to an admission of those facts. The court also held that the notice to admit facts did not include any matters of law, and that therefore the applicant was not required to file a notice of dispute. The court concluded that the applicant’s argument that he had not been properly notified of the making of the order was without merit.

The court then considered the applicant’s argument that the order was inconsistent with his rights under various international treaties. The court noted that these treaties were not directly applicable in Australian domestic law, and that therefore the applicant’s argument was based on a misunderstanding of the law. The court also noted that the applicant had not provided any evidence to support his argument that the order was inconsistent with his rights under these treaties. The court held that the applicant’s argument was without merit.

The court also considered the applicant’s argument that the order was inconsistent with his rights under the Criminal Code Act 1995 (Cth) because it amounted to slavery, servitude, or forced labour. The court noted that the applicant had not provided any evidence to support this claim, and that the order did not amount to slavery, servitude, or forced labour. The court held that the applicant’s argument was without merit.

Finally, the court considered the applicant’s argument that the order had not been made in accordance with the principles of natural justice. The court noted that the applicant had not provided any evidence to support this claim, and that the order had been made in accordance with the principles of natural justice. The court held that the applicant’s argument was without merit.

In light of the above, the court dismissed the application and ordered the applicant to pay the respondent’s costs of the proceeding.

Orders

Orders of the court

1. The name of the respondent be amended to “Child Support Registrar”.

2. The originating application is dismissed.

3. The applicant pay the respondent’s costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

In circumstances where the matter had only been set down for a directions hearing, I was conscious of the necessity for the applicant to have a fair trial, including having an adequate opportunity to make submissions and to respond to the respondent’s material. However, given that the applicant wished to proceed, I was satisfied that it was appropriate to proceed with a final hearing. Background The applicant is the father of a child born on 31 December 2004. He is liable to pay child support in respect of his child. In 2005, the child’s mother asked the then Child Support Agency to calculate and collect outstanding child support payments. The respondent placed into evidence a certificate which states that as at 8 December 2014 amounts totalling $46,596.87 were due and payable by the applicant to the Commonwealth and remained unpaid. The certificate states that the amount is a registerable maintenance liability under ss 30 and 67 of the Child Support Act. Pursuant to s 116(2) of the Child Support Act the certificate is prima facie evidence of the matters stated in it. The material before the Court demonstrates a lengthy history of departmental officers attempting to contact the applicant, usually unsuccessfully, with a view to attempting to have him pay the outstanding child support debt. On 18 March 2014, a document entitled “Submission to make a Departure Prohibition Order” was prepared. The submission noted that s 72D of the Child Support Act provides that a DPO may be made if four conditions are satisfied. It then proceeded to consider those conditions. First, the submission considered whether the applicant had a child support liability. It set out the relevant history and concluded that he had an outstanding child support liability of $30,825.39 at that time. Second, the submission considered whether the applicant had not made satisfactory arrangements to wholly discharge the liability. It noted that the applicant had last made a payment towards his child support liability on 3 March 2010 and had not entered into any payment arrangements to address his child support arrears. It concluded that there was no satisfactory arrangement in place to discharge the outstanding liability. Third, the submission considered whether the applicant had persistently and without reasonable grounds failed to pay the outstanding child support. The submission noted that proceedings had been taken in the Federal Magistrates Court against the applicant and that on about 12 March 2008 the applicant had made a payment of $11,036.74 as well as $1,000 court costs. Although he was required to make monthly payments, he had only made eight payments since then. The submission stated that since arrears had started to accumulate, 29 attempts had been made to contact the applicant via telephone and email, but that he had failed to respond to any of those attempts and that he had failed to provide up to date contact details. The submission noted that the mother of the applicant’s child had stated that the applicant had substantial assets and is a civil engineer and pilot. The submission concluded that it would be reasonable to consider that the applicant has access to financial resources that had not been disclosed. It concluded that the third condition had been met.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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