Moore and Moore
[2012] FMCAfam 577
•3 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOORE & MOORE | [2012] FMCAfam 577 |
| CHILD SUPPORT – Leave sought to appeal an objection decision made in 2006 – leave sought to vary administrative assessments following changes in assessment decisions in 2008 and 2009 – consideration of factors relevant to a grant of leave – changes in child support legislation. |
| Child Support (Assessment) Act 1989, ss.110, 111, 112, 116, 118 Child Support Legislation Amendment (Reform of The Child Support Scheme--New Formula And Other Measures) Act 2006 Child Support (Registration and Collection) Act1988, ss.72C, 113A Family Law Act 1975, s.60I Federal Magistrates Court Rules 2001, regs.1.06, 3.05, 25A.04 |
| Bagala & Bagala [2009] FMCAfam 953 FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; (1988) 77 ALR 411 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 In the Marriage of Tormsen (1993) 18 Fam LR 232; (1993) FLC 92-392 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
| Applicant: | MS MOORE |
| Respondent: | MR MOORE |
| File Number: | WOC 845 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 16 March 2012 |
| Date of Last Submission: | 16 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Self-represented litigant |
ORDERS
All extant applications be adjourned to this Court on 9 August 2012 at 9:30am for mention (“the mention hearing”).
The Respondent’s application, under s.110 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) (as in force in 2006), for leave to appeal the objection decision made on 23 August 2006 be refused.
The Respondent’s application for leave, pursuant to ss.111 and 112 of the CSAA (as currently in force), to vary administrative assessments of child support be refused in respect of the following assessments:
(a)the decision of Mr D made on 23 April 2008; and
(b)the decision of Mr H made on 6 April 2009.
The Further Amended Response filed by the Respondent on 25 January 2012 be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to:
consider whether the Child Support Registrar wishes to take an active part in these enforcement proceedings;
consider whether the matter would benefit from a transfer to the Wollongong Registry of this Court;
make further directions in the matter; and
consider whether the matter is suitable to be set down for final hearing of the mother’s enforcement application.
(B)At the hearing on 16 March 2012, the Further Amended Response filed on 25 January 2012 by the Respondent was treated as an Application in a Case.
IT IS NOTED that publication of this judgment under the pseudonym Moore & Moore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 845 of 2009
| MS MOORE |
Applicant
And
| MR MOORE |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision relates to applications made by MR MOORE, (“the father”) for leave to appeal a 2006 objection decision of the Child Support Agency (“CSA”) and for leave for the Court to make orders amending several administrative assessments of child support that are more than 18 months old.
The father’s application for leave is opposed by MS MOORE (“the mother”). The mother further opposes the orders sought by the father to amend the relevant administrative assessments.
The mother commenced the substantive proceedings between these parties by way of an Initiating Application filed on 6 October 2009 seeking enforcement of asserted child support arrears and other related payments.
As such, the substantive proceedings are, in fact, enforcement proceedings brought by the mother against the father.
During the course of these enforcement proceedings the father sought orders that would enable him to appeal an objection decision of the CSA dated 23 August 2006 and for leave to seek that the Court amend several administrative assessments of child support that are more than 18 months old. These assessments arise from two decisions of the CSA, dated 23 April 2008 and 6 April 2009 respectively, which resulted in changes to the administrative assessment of child support being made.
This decision will firstly consider the merits of the father’s leave application(s) before, secondly, considering the merits of the father’s proposed applications to amend the relevant administrative assessments.
This decision does not deal with the mother’s enforcement application. I anticipate that the final hearing of the mother’s enforcement application will be listed following release of this decision and following a decision of the CSA as to whether it proposes to seek to intervene in, or otherwise take over, the enforcement application.
Background
The father and mother married [in] 1989 and separated on 23 May 2003. The parties were divorced in 2005.[1]
[1] The mother asserts that a divorce order was made on 1 January 2005 and the father says that it was in April of that year.
There are five children of the marriage; namely [V], born [in] 1989, [W], born [in] 1991, [X], born [in] 1997, [Y], born [in] 1999, and [Z], born [in] 2001 (or collectively “the children”).
The father worked for [P] until late 2005 when he left that employment because of alleged stress and depression. [P] referred the father to counselling with Ms V, consultant psychologist, for six appointments during 2005 and 2006.[2] The father ceased employment with [P] in December 2007 and has not worked since that time.
[2] See father’s affidavit filed 21 June 2011 at Annexure 1.
During the course of the substantive enforcement proceedings, the father has asserted on a number of occasions that he is the homemaker and parent for himself and his partner, Ms D, and her children from a previous relationship. The father resides in premises owned by his partner. He has also freely acknowledged to the Court during the course of the substantive proceedings that he gave to his partner a substantial part of the funds he received from [P] upon leaving his employment and that those funds were used to reduce the mortgage debt over his partner’s home.
The mother currently works full-time as a [omitted]. The mother resides at rented premises in [omitted] with [W], [X], [Y] and [Z]. The eldest child, [V], no longer lives with the mother and, it appears, has two children of her own.
The mother commenced proceedings in the Family Court of Australia in 2004 and final parenting and property orders were made by consent on 14 December 2004. Both parties were legally represented during these original proceedings.
On 6 October 2009 the mother filed an Initiating Application in the Federal Magistrates Court seeking a lump sum child support payment as part of final orders and also that other child support arrears be paid. As stated, the father filed a Response on 9 December 2009 seeking the dismissal of the mother’s Initiating Application, orders in relation to child support and that the parties have shared care for [X], [Y] and [Z].
The matter first came before Altobelli FM in the Wollongong Registry on 10 December 2009. On that occasion his Honour made orders for the parties to attend a Family Relationships Centre, to obtain a Certificate under s.60I of the Family Law Act 1975 (Cth), as well as a Conciliation Conference before a Registrar in relation to their property dispute.
The parties duly attended a Conciliation Conference before Registrar Cameron on 5 February 2010 but were unable to resolve their dispute. On his bench sheet Registrar Cameron noted the following:
“I note that, with respect to child support, the husband indicated that he would formulate and put an informal offer to settle the arrears component to the wife early next week.
I note that, with respect to ongoing child support, the husband may need to file expert evidence with respect to his current medical condition and his incapacity to engage in employment.”
When next before Altobelli FM on 29 March 2010, the parties were referred to a Child Dispute Conference. On the Court’s own motion on 22 April 2010 an Independent Children’s Lawyer was appointed in Chambers. Presumably, this was triggered by the recommendation made by Ms K, family consultant, after the Child Dispute Conference on 19 April 2010.
After two more appearances on 18 June 2010 and 10 August 2010, Altobelli FM made orders on 2 September 2010 setting the issues in relation to child support down for hearing on 4 May 2011 in the Wollongong Registry. His Honour also discharged the appointment of the Independent Children’s Lawyer upon noting that the father was not proceeding with any orders in relation to parenting.
On 4 May 2011 the parties duly appeared before me in the Wollongong Registry. The matter did not proceed to final hearing on that occasion as I was not satisfied that s.113A of the Child Support (Registration and Collection) Act1988 had been complied with in respect of provision of notice to the Child Support Registrar (“CSR”). I note that this has since been rectified. Consequently, I adjourned the matter to
30 June 2011 for mention before me in Sydney, granting the parties liberty to appear by telephone and requesting that a representative from the Child Support Agency attend to assist the Court. The following notations were also made on that occasion:
“A.This matter did not proceed to final hearing today.
B.The Respondent has not complied with the Orders made by FM Altobelli on 2 September 2010 to file and serve any evidence upon which he intended to rely, including updated finanacial statements, not less than 21 days before the hearing.
C.The Applicant, in her Initiating Application filed 6 October 2009 (‘the Initiating Application’) is seeking inter alia enforcement of the child support debt owed by the Respondent.
D.The Applicant contacted her former legal representatives today who advised her that there may be evidence in her file that there was compliance with the Child Support (Registration and Collection) Act 1988, however, her file has been placed in storage.
E.The Respondent, in his Response filed 9 December 2009, in addition to seeking the dismissal of the Initiating Application, is purporting to seek an amendment of the administrative assessment that is more than 18 months old that would, with the exception of the 2007/2008 financial year, reduce his child support liability (and arrears) to ‘nil’.
F.The Respondent asserts that he is a full-time homemaker and parent and is not in receipt of any paid income or Centrelink benefits and is consequently unable to meet any child support liability.
G.The Respondent further asserts that he has medical evidence to support his decision to leave paid employment.
H.The purpose of the mention hearing is to consider the following:
1.whether it is appropriate to list the matter for final hearing again in the event that the proper documentation is before the Court;
2.whether the Court is satisfied that the Child Support Agency had been put on notice of these proceedings before they were commenced by the Applicant’s former legal representatives;
3.whether the Respondent has filed any Amended Response pursuant to paragraph 4 herein and further whether any such Amended Response seeks appropriate and enforceable orders;
4.whether leave should be granted pursuant to s.112 of the Child Support (Assessment) Act 1989 (‘the Assessment Act’) for the Child Support Registrar to make a determination under s.98S of the Assessment Act or for the Court to hear the matter; and
5.whether the Child Support Agency wishes to take any part in these proceedings.”
On 4 May 2011 the father also raised issues relevant to the leave applications currently before the Court.
The matter returned before me on 30 June 2011 and a further adjournment was granted as there was no appearance by the CSA.
On 18 October 2011 Ms J, Senior Lawyer in the Program Litigation and Review Branch of the Department of Human Services, appeared as amicus curiae. Following submissions, I further adjourned the matter to 18 November 2011 for mention with the purpose of receiving an update on whether the father had made an application for an out of time review and whether the CSA was considering such review. The father was directed to seek from the CSA any review of the assessments dated 22 March 2006, 23 April 2008 and 6 April 2009 by not later than 4:00pm on 25 October 2011. I also made a notation that I was satisfied that the CSA was contacted by the Applicant prior to her commencing the substantive proceedings.
When the matter returned on 18 November 2011 I further adjourned it to 1 February 2012 for mention to check on compliance with Orders for the father to serve material and to make further directions with respect to the hearing of the matter. I also listed the father’s applications for mention and hearing on 16 March 2012, and directed the father to make, file and serve his Further Amended Response and affidavit in support by not later than 4:00pm on 25 January 2012. I also made the following notations:
“A.The purpose of the mention hearing is to confirm:
a.that the Respondent has complied with the Orders for him to serve material and, if so, to make an Order that the Applicant make file and serve any Reply and affidavit in support by not later than 4:00pm on 22 February 2012; and
b.that the matter will remain listed for interim hearing on 16 March 2012, with respect to the Respondent's applications under ss.111 and 112 of the Child Support (Assessment) Act 1989 (Cth) and for leave to appeal the Agency’s review decision made on 23 August 2006.
B.The Child Support Agency will assist the Court by providing the parties with the review decision of the Child Support Agency dated 23 August 2006 with respect to the Respondent's objection.
C.The Applicant indicated to the Court that she will seek legal advice on whether or not she should file an Amended Initiating Application.
D.With respect to the Child Support Agency’s 2006 assessment, there was a objection review decision made on 23 August 2006, but no appeal of the review decision to the Court within 28 days of it being released, so the Respondent needs to apply to the Court for an extension of his time to appeal.
E.The Respondent did not object to the 2008 and 2009 assessments of the Child Support Agency, hence, he has now applied to the Child Support Registrar for an extension of the time within which he may file an objection.”
On 1 February 2012 I made Orders for the mother to make, file and serve any Reply and affidavit in support with respect to the Respondent's Amended Response by not later than 4:00pm on
22 December 2012 and otherwise confirmed the hearing listing on 16 March 2012.
The parties duly appeared before me on 16 March 2012 for hearing of the father’s leave application(s). The parties appeared as self represented litigants. Ms J of the CSA again appeared as amicus curiae and her assistance is greatly appreciated by the Court.
Documentation
The father relied on the following documents in support of his leave applications:
·Further Amended Response filed on 25 January 2012 (taken as an Application in a Case);
·the father’s Affidavit sworn and filed on 25 January 2012;
·the father’s Affidavit sworn on 20 June 2011 and filed on 21 June 2011; and
·the father’s Financial Statement sworn on 20 June 2011 and filed on 21 June 2011.
The father also tendered a Notice of Decision on Objection made by Senior Case Officer Ms P, dated 23 August 2006 (which became Exhibit “RF1”).
In opposing the father’s leave application(s), the mother relied on the following documents:
·Initiating Application filed 6 October 2009;
·the mother’s affidavit sworn 1 October 2009 and filed 6 October 2009;
·the mother’s Financial Statement sworn 1 October 2009 and filed 6 October 2009;
·the mother’s Financial Statement sworn 11 April 2011 and filed 13 April 2011; and
·the mother’s affidavit sworn 21 February 2012 and filed 22 February 2012.
Ms J assisted the Court by providing to the father the document which subsequently became Exhibit “RF1” and by handing up to the Court a copy of the decision of Riethmuller FM in Bagala & Bagala [2009] FMCAfam 953. I will return to this authority shortly.
The father’s applications
As stated, the matters requiring consideration by the Court in this decision involve the leave applications made by the father to enable him to seek orders to amend the relevant administrative assessments.
The father sought these applications in his Amended Response filed 27 June 2011 and Further Amended Response filed 25 January 2012. Having heard the father, and also Ms J from the CSA, I am now satisfied that the intent of the father is to raise these leave applications by way of an Application in a Case and have them determined prior to the hearing of the mother’s substantive enforcement proceedings. At this stage, the father seeks to ‘defend’ the enforcement application by making his own application seeking orders to amend the relevant administrative assessments. Presumably if he succeeds, the father would intend to pay any arrears owing as then assessed.
Consequently, on 16 March 2012, I made orders for the Further Amended Response filed by the father on 25 January 2012 to be treated as an Application in a Case, and made additional orders for the father to file an appropriate Response to the substantive enforcement proceedings brought by the mother.
As this interpretation by me occurred during the hearing of the father’s leave applications, and further, because the mother is a self-represented litigant, I did not require the mother to make, file and serve a Response to the now styled Application in a Case of the father. As stated, it was clear to the Court that the mother opposed the leave applications as well as the orders sought by the father for the amendment of the relevant administrative assessments
As stated, the father seeks orders that leave be granted in respect of various decisions of the Child Support Agency (“CSA”). More specifically, the father seeks leave for three specific child support assessments to be varied. The father requires leave for two reasons:
·firstly, as one of the assessments relates to a Objection Decision of the CSA which occurred in 2006, leave is required to extend any application to ‘appeal’ because the father failed to lodge his ‘appeal’ within the required period; and
·secondly, leave is required, pursuant to the relevant statutory provisions, to seek an amendment of the other assessments, which flowed from two CSA change of assessment decisions in 2008 and 2009, because the father is seeking the amendment of administrative assessments that are more than 18 months old.
If the father succeeds with his leave applications, then he further asks the Court to use its powers, presumably under s.111 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) (as it existed in 2006) and s.118 of the CSAA, to fix his relevant income for child support assessment purposes[3] (or to vary the annual rate of child support payable[4]) in the following manner:
·$7,670.00 for September 2005 – June 2006;
·$1,119.00 for July 2006 – June 2007;
·$79,390.00 for July 2007 – June 2008; and
·for “child support be paid at the minimum annual rate” for July 2008 to date.
[3] Presumably pursuant to s.118(1)(c) of the CSAA
[4] Presumably pursuant to s.118(1)(a) of the CSAA.
While the above amounts differ from those contained in the father’s ‘Further Amended Response’ filed 25 January 2012, during the course of the hearing I granted the father leave to amend the relevant Response to reflect those amounts.[5]
[5] Transcript, 16 March 2012, page 4. I note that the orders now sought are now reflected in paragraph 2 of the father’s Further Response filed after the hearing on 30 April 2012.
The relevant child support administrative assessments were the subject of a change of assessment application sought by the mother which resulted in the following decisions of the CSA:
·22 March 2006 (Decision of Mr T);[6]
·23 April 2008 (Decision of Mr D);[7] and
·6 April 2009 (Decision of Mr H).[8]
[6] This decision is attached to the father’s Affidavit filed on 21 June 2011 at pages 6-11.
[7] Ibid, at pages 12-17.
[8] Ibid, at pages 18-25.
In each of these decisions the mother succeeded in having the father’s child support income amount (or adjusted taxable income amount from 1 July 2008) changed to the following:
·$41,817.00 for September 2005 – 30 November 2005;
·$42,646.00 for January 2006 – 30 September 2007;
·$43,000.00 for 1 October 2007 – 31 December 2009;
·$79,390.00 for 1 April 2008 – 31 March 2009;
·$44,720.00 for 1 January 2010 – 31 December 2010; and
·As assessed for 1 January 2011 to date.
The father’s Objection to the 2006 decision was considered by CSA Objections Officer Ms P on 23 August 2006 (“the 2006 Objection Decision”). The father’s objection was unsuccessful for the reasons stated in that decision.
In addition to his failure to object to the 2008 and 2009 change of assessment decisions, the father also acknowledges that he did not seek to ‘appeal’ the 2006 Objection Decision until 2011 when the substantive enforcement proceedings were before this Court.
Therefore, by way of summary, what the father is seeking is:
·firstly, leave to appeal the 2006 Objection Decision pursuant to s.110 of the CSAA (as it existed at the time that the relevant decision was released) and Regulation 25A.04 of the FMC Rules (as in force in 2006) (“the s.110 leave to appeal application”). If leave is granted, then the father seeks, presumably pursuant to s.111 of the CSAA (as in force in 2006), an order varying his child support income for the relevant period;
·secondly, leave to amend the administrative assessments flowing from the 2008 and 2009 change of assessment decisions, pursuant to ss.111 and 112 of the CSAA (“the s.112 leave applications to vary the administrative assessments”). Presumably the father also seeks, pursuant to s.112(2), that the Court consider making an order under s.118 of the CSAA, varying his child support income or varying the annual rate of child support payable (as applicable) at the same time as it hears his s.111 application because “it would be in the interests of the parties to the proceeding”.[9]
[9] See s.112(2) of the CSAA.
As stated, the mother opposes the leave application(s) sought by the father and also opposes any change being made to the existing child support assessments.
Relevant Law
The s.110 leave to appeal application
Additional background
As stated, the father lodged an ‘objection’ to the CSA’s 2006 change of assessment decision. Following a re-consideration, the CSA determined not to change the earlier decision. That is reflected in the ‘Notice of Decision on Objection’ dated 23 August 2006 (see Exhibit “RF1”).
The 2006 change of assessment decision states as follows:
“1) That Mr Moore’s child support income be increased to $41,817 for the period from 5 September 2005 until 30 November 2005.
2) That Mr Moore’s child support income be increased to $42,646 for the period from 4 January 2006 until 30 September 2007.” [10]
[10] See the father’s affidavit filed 21 June 2011 at Annexure 5.
Thereafter, the CSA provides four pages of reasons to explain that decision. The CSA indicated that the change of assessment application succeeded for two reasons:
“Reason 6: It costs the payee more than 5% of their child support income amount for child care.
“Reason 8: The child support assessment does not take into account the income, earning capacity, property and financial resources of the applicant or the respondent”.
I note that in his affidavit filed on 21 June 2011, the husband attaches (at page 5) a copy of the CSA’s letter to him dated 3 April 2006 which, it would appear, enclosed the 2006 change of assessment decision. This letter clearly refers to the options that were available to the father should he have wished to seek a review of the decision. For completeness, it states as follows:
“If you think that this decision is wrong, you can object by:
· Writing to CSA asking us to change the decision and including the reasons why you think the decision is wrong.
· Sending your objection to us within 28 days from the time that you get this letter.
· We will tell the other party the reasons for your objection, so that they can respond.
· If you are not happy with the result of the objection, you can then ask a court to change our decision.”
The father did not attach a copy of the 2006 Objection Decision to any of his affidavits. He asserts that he was unable to locate a copy. The CSA ultimately provided a copy to him for the purposes of tender.
I note that at the conclusion of the 2006 Objection Decision it clearly states:
“RIGHT TO APPLY TO COURT FROM A CHANGE OF ASSESSMENT
Either parent may apply to a court for a change of assessment if they believe this decision does not provide a fair assessment of child support payable for the children in this case”.
Relevant law
As stated, the father is seeking leave (pursuant to s.110 of the CSAA (as it applied in 2006)) to file an appeal ‘out-of-time’ against the 2006 Objection Decision.
The current version of s.110 of the CSAA reflects amendments made by the enactment of the Child Support Legislation Amendment (Reform of The Child Support Scheme--New Formula And Other Measures) Act 2006. However, as these changes did not commence until 1 January 2007, the applicable law would be the version of s.110 that existed as at the date of the 2006 Objection Decision – ie. 23 August 2006.
At the relevant time, s.110 of the CSAA stated (with bolded text emphasised by the Court):
“(1) If a liable parent or a carer entitled to child support is aggrieved by any of the particulars of an administrative assessment, he or she may, subject to subsection (1A), appeal to a court having jurisdiction under this Act against the assessment.
(1A) A person may not appeal to a court under subsection (1) in relation to particulars unless:
(a) an objection to those particulars has been lodged under section 98X; and
(b) the Registrar has either disallowed the objection or has allowed it in whole or in part.
(2) The grounds of the appeal may include:
(a) that an annual or daily rate of child support specified in the assessment was incorrectly assessed; or
(b) that the assessment has incorrectly determined the days in relation to which the child support is payable; or
(c) that an annual rate of child support specified in the assessment is no longer correctly assessed because the Registrar has failed to give effect to section 74 (Registrar to give effect to happening of child support terminating events etc.), or any other provision of this Act, in relation to the assessment.
(3) The appeal must be instituted within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.
(4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the appeal are the liable parent, and the carer entitled to child support, in relation to whom the assessment was made.
(5) Subsection (1) has effect:
(a) subject to Chapter III of the Constitution; and
(b) despite section 9 (Limitation of jurisdiction of State courts) of the Administrative Decisions (Judicial Review) Act 1977.”
The father’s need to seek leave arises because reg.25A.04 of the Federal Magistrate Court Rules 2001 (“the FMC Rules”) (as applied in 2006). At the relevant time reg.25A.04 stated (with bolded text emphasised by the Court):
“25A.04 Time limits for appeals and applications under Assessment Act
A person must file an application or appeal under subsection 106(1), 106A(1), 107(1) or 110(1) or section 132 of the Assessment Act within 28 days after receiving:
(a) for an application under subsection 106(1), 106A(1) or 107(1) of the Assessment Act – a notice given under section 34 or subsection 98ZC(2) of the Act; and
(b) for an appeal under subsection 110(1) or section 132 of the Assessment Act – a notice given under subsection 98ZC(2) of that Act.”
In other words, the father should have filed his ‘appeal’ within 28 days of receiving the 2006 Objection Decision dated 23 August 2006.
Generally speaking, if legislation sets particular times, there is no power to reduce or extend that time unless the relevant Act also grants that power.
In this case, it is noteworthy that reg.25A.04 of the FMC Rules does not provide specific criteria as to what the Court must consider when an appeal or application under the CSAA is made ‘out of time’. That said, I have presumed that the father seeks that the Court applies reg.3.05 of the FMC Rules seeking an extension of the time fixed by the Rules for the filing of the appeal. Regulation 3.05 of the FMC Rules states as follows:
“Extension or shortening of time fixed
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.
(2)A Registrar may extend or shorten a time fixed by these Rules.
(3)The time fixed may be extended even if the time fixed has passed.
(4)A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.”
An alternative argument for the father would be a request under reg.1.06 of the FMC Rules to dispense with the application of the relevant Rule. Regulation 1.06 of the FMC Rules states as follows:
“1.06 Court may dispense with rules
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.”
For the sake of completeness, I note that the 2006 wording of both reg.3.05 and reg.1.06 remains unchanged today.
Given that reg.3.05 of the FMC Rules is specifically relevant to the issue of the extension of time fixed “by these Rules”, I see no benefit in considering a dispensation of the FMC Rules to the Application in question. In any event, despite the power under the FMC Rules, the Court has an implied power to extend times in particular circumstances.[11]
[11] See generally FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; (1988) 77 ALR 411.
Consequently, given the absence of further specific criteria to consider (unlike, for example, s.112(4) of the CSAA, discussed below), the Court will need to consider this aspect of the dispute by reference to the relevant law that applies to the general issue of leave to extend time for the filing of an application ‘out-of-time’.
In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, McHugh J stated:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.” [12]
In that context, and in addition to a consideration of the reasons proffered to explain the delay in seeking an extension of time, his Honour referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or the refusal of the extension of time.[13]
[12] Gallo v Dawson (1990) 93 ALR 479 at 480.
[13] Ibid, at 481.
In addition, in the context of family law litigation, the Court should also consider the prospects of success if time is extended and the right which the other party has to compliance with previous orders, the desirability of finality in litigation, the presence or absence of an adequate explanation, and costs.[14]
[14] For a discussion see In the Marriage of Tormsen (1993) 18 Fam LR 232; (1993) FLC 92-392.
In summary, the factors that the Court should consider are:
·the reasons for the father’s failure to file the appeal within the time prescribed and/or the reasons to explain his delay in seeking an extension of time for the filing of the appeal;
·the history and nature of the litigation;
·the conduct of the parties (including as to compliance with previous orders);
·the consequences to the parties of the grant, or the refusal, of the extension of time; and
·the desirability of finality in litigation (and where applicable, the relevance of costs orders).
If the father succeeds in his leave to appeal application, then s.111 of the CSAA as it existed in 2006 (and not to be confused with s.111 as currently enacted with effect on and from 1 January 2007 and discussed below) provided the Court with discretion to, inter alia, vary the relevant assessment.
The s.112 leave applications to vary administrative assessments
Additional background
On 23 April 2008, Senior Case Officer Mr D made the following decision:
“1.To change the administrative assessment of child support.
2.From 1 October 2007 to 31 December 2009, Mr Moore’s child support income amount (adjusted taxable income from 1 July 2008) is set at $43,000.00.
The decision will have the effect of increasing Mr Moore’s child support liability.”[15]
Thereafter follows a five page explanation of the decision. This was classified as a “Reason 8” decision.
[15] See father’s affidavit filed 21 June 2011 at Annexure 6.
On 6 April 2009, Senior Case Officer Mr H made the following decision:
“1. That there be a change to the administrative assessment in the case [number omitted].
2.That the child support income amount of Mr Moore is set at $79,390 for the period 1 April 2008 to 31 March 2009.
3.That the adjusted taxable income amount of Mr Moore remains set at $43,000 for the period 1 April 2009 to 31 December 2009.
4.That the adjusted taxable income amount of Mr Moore is set at $44,720 for the period 1 January 2010 to 31 December 2010.
5.That the resulting assessment is increased by $2,440 per annum for the period 13 February 2009 to 31 December 2010.
6. That the resulting assessment is increased by $2,538 per annum for the period 1 January 2010 to 31 December 2010.
Thereafter, there is to be an assessment of child support calculated in accordance with the usual provisions of the Child Support (Assessment) Act 1989.
Centrelink note: Generally, an increase in the child support assessment is considered to be ‘maintenance’ for the Centrelink purposes. Where a carer is receiving family allowance at more than the minimum rate, an increase in child support may affect the amount of allowance paid to the carer. However, part of the increase in the child support assessment arising from this decision related to [X]’s ‘special needs’. In this respect, it is my intention that the $2,440 and $2,538 per annum increase is intended to be a contribution by Mr Moore towards additional schooling costs arising from special needs. Please consider excluding this component when assessing any entitlement Ms Moore may have to the Family Tax Benefit.
The decision will have the effect of increasing the amount of child support payable by Mr Moore.”[16]
[16] See father’s affidavit filed 21 June 2011 at Annexure 7.
Thereafter follows a six page explanation of the decision. This was classified as a “Reason 2” decision.
Relevant law
In this matter the father is seeking leave, pursuant to a combination of ss.111 and 112 of the CSAA, for an amendment of administrative assessments or decisions of the CSAA that are more than 18 months old. If leave is granted or being considered, then, in the context of this case, provisions including ss.116 and 118 would be relevant. These provisions are discussed further below.
Section 111 of the CSAA states:
“Application for amendment of administrative assessment that is more than 18 months old
(1)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.
(2)Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to child support.
(3) [Not Applicable]
(4) [Not Applicable]”
Section 112 of the CSAA states:
“Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b) is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a) the Registrar is required to make a determination under section 98S; or
(b) the court is required to make an order under section 118.”
Assuming the father’s leave applications are granted, then he further asks the Court to make an order under s.118 of the CSAA to amend the relevant child support assessments.
As previously stated, s.112(2) of the CSAA enables the Court to consider making an order under s.118 of the CSAA (that may vary the father’s child support income or may vary the annual rate of child support payable) at the same time as it hears the father’s s.111 application. That said, for this to occur the Court must be satisfied that “it would be in the interests of the parties to the proceeding”. If the Court does so, then the father is taken to have made an application to the Court for such an order under s.116 of the CSAA. I note again that the father acknowledges that he is seeking such a departure in the context of enforcement proceedings being commenced against him by the mother pursuant to s.113A of the Child Support (Registration and Collection) Act1988.
For completeness, s.116 of the CSAA states:
“Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged;
(iii) the Registrar has disallowed the objection; or
(aa) all of the following apply:
(i) a decision has been made in respect of the administrative assessment;
(ii) an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab) the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
Note 1: For the orders that a court may make under this Division see section 118.
Note 2: With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3: A court may make an order under this Division if the court sets aside a child support agreement under section 136.
(2) An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.”
In the event that the Court determines (pursuant to s.112(2) of the CSAA) that it would not be in the interests of the parties to the proceeding to consider making an order under s.118 at the same time as it hears the father’s s.111 application, then I acknowledge that the father may still have an argument under s.116(1)(b)(i) of the CSAA to request that his application seeking orders under s.118 be heard because of the mother’s enforcement proceedings being before the Court. This would be, given the wording of s.116(1)(b)(ii), subject to the Court being satisfied that it would be in the interests of the parties and that there are special circumstances existing.
In relation to applicable case law, I note that a number of these issues were considered by Riethmuller FM in the case of Bagala & Bagala [2009] FMCAfam 953 (“Bagala”). In Bagala, as with the case before me, a liable parent filed an application for a departure order in the context of enforcement proceedings. I note that the liable parent in Bagala ultimately failed in his attempt to seek a discharge of child support arrears.
At paragraphs [17]-[28] of his decision, Riethmuller FM stated:
“16.The Applicant is currently before the Court as a result of the enforcement application lodged by the Child Support Registrar and therefore satisfies s.116(1)(b)(i).
17.Section 116(1)(b)(ii) requires the court to be satisfied that it would be in the interest of the liable parent and the carer entitled to child support for a departure order to be made in the special circumstances of the case.
18.Before exercising the discretion whether to allow the applicant’s departure application, I must consider the objects and purpose of the child support legislation.
The legislation
19.The objects of the Child Support (Assessment) Act 1989 are set out in s.4, and in particular, the relevant sections are ss. 1 and 4(2)(c):
s.4 Objects of Act
(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
…
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings…
20.Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been [two] sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments. The first was the introduction of the departure process under part 6A of the Act, allowing for administrative departures from child support assessments. The second change was providing for objection rights following Part 6A decisions, and the third significant change provided for review by the SSAT. All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship of applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well developed informal administrative system has been developed.
21.The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.
The exercise of the discretion
22.The applicant had real opportunities, prior to the Child Support Registrar filing the enforcement summons, to seek a review of his child support liability. He chose not to do so and has not provided any evidence of a reasonable excuse for not doing so. In his affidavit of
26 March 2009 he states:
6. I have sought to bring this matter directly to court as I understand the Agency’s internal processes do not allow for cases to be brought which cover periods of time more than 18 months in the past.
The evidence does not, however, explain why the applicant failed to pursue a right of review when he was within the Child Support Agency’s time for review. Nor does the applicant explain why he would not simply seek an extension of the 18 months time limit from the court under s.112 of the Child Support (Assessment) Act.
23.By waiting until the Child Support Agency issued proceedings for enforcement before seeking a departure decision, the applicant is also circumventing the substance of the legislation scheme which provides for all departure decisions to be administrative, and only to be heard in court on appeal from the SSAT or if other proceedings are pending. The legislature would not have expected the payee to be drawn into expensive litigation at this stage. By waiting until now, the applicant has placed the payee in the position of facing significant legal costs or compromising her entitlements of $11,526.11. One has only to look to the FMC scale costs to see the commercial realities of litigation in a case such as this: scale costs for a one day trail with counsel could easily amount to a sum equivalent to the child support arrears (see Items 1, 3, 5, and 6). Despite not availing himself of the earlier opportunities to litigate child support the applicant also seeks a costs order against the respondent for his own costs.
24.The nature of the decisions of the Child Support Agency were unremarkable. In the first decision the Senior Case Officer looked at the expenditure of the applicant as a plumber running his own company, and concluded that his financial position was equivalent to a person earning around $72,000. The following year a Senior Case Officer refused to alter the assessment, after reviewing the applicant’s Profit and Loss statement for the 2006/07 year which showed he received a wage of $40,000 and that his company made a profit of nearly $32,000. It seems that the profit and Loss statement demonstrated that the first Senior Case officer made a very accurate decision. Whilst the applicant complains about references to depreciation, he does not set out the amount of his companies’ depreciation claims, nor how this affects the company cash flow.
25.The applicant also makes a generalised claim with respect to the costs of contact, saying that ‘if this matter cannot be settled before being tried I shall bring to court with me and tender into evidence documents evidencing those relevant expenses.’ It is not framed in such a way as to allow the payee to reasonably assess the amount of this claim or its likelihood of succeeding: rather it is framed more like an ambit claim to pressure a settlement.
26.The payee has no income as she is a parent caring for children, and relies upon social security for her support.
27.The applicant also argued that if he was not granted leave to bring the departure application now, he would oppose the enforcement of the child support ground, relying upon the Court’s discretion to decline to enforce a child support debt. I do not find this argument persuasive in this case as the Registrar of the Child Support Agency will be the other party, and not under the same costs pressure as the payee. Whether the enquiry on the discretion to enforce is as broad ranging as a departure application is a question best left to that application.
28.I am not persuaded that this is an appropriate case for the exercise of the discretion to allow the applicant to bring an Application for a Departure Order in these proceedings in the circumstances of this particular case.”
I further note that Riethmuller FM went on to consider whether the liable parent might be, in addition, or in the alternative, estopped from pursuing his departure application as a result of the principles discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 (“Anshun estoppel”) . The substance of Anshun estoppel is that a party is required to bring all of that party’s claims in the one proceeding if they can reasonably do so. At paragraphs [32]-[33] of Bagala his Honour stated:
“32.In this case the applicant had rights of review following his initial objection in 2007, and with respect to his May 2008 application for a change of assessment. These rights of review are administrative and therefore do not create an Anshun estoppel. However, it is clear he could have sought a change to the assessment at the same time as the property proceedings between the parties in November 2008. Those proceedings required a detailed examination of the assets, financial resources, income and expenses of the parties in order to determine the relevant factors under ss.79 and 75(2) of the Family Law Act 1975. The payee had child support proceedings on foot seeking non-periodic child support at that time. He did not raise the child support issues in those proceedings, despite the fact that there were so many common issues. The applicant would have been able to seek the changes to the assessment he seeks now in those previous child support proceedings.
33.The applicant did not take any action until faced with enforcement proceedings by the Child Support Registrar. In the circumstances I am persuaded that the applicant should be estopped form pursuing a departure application now on the basis of the principles in Anshun.”
Returning to the case before me, and for completeness, I note that s.118 of the CSAA enables the Court to make orders that would vary child support assessments. Section 118 states:
“(1)The orders that a court may make under this Division are as follows:
(a)an order varying the annual rate of child support payable by a parent;
(b)an order varying a parent's or non-parent carer's cost percentage for a child;
(c)an order varying a parent's child support income;
(d)an order varying the parents' combined child support income;
(e)an order that:
(i) the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is ordered to be, greater than 2.5 times the annualised MTAWE figure for the relevant September quarter, is the column headed ‘2 to 2.5’; and
(ii) the column is to apply as if the second dollar amount in the heading to that column did not apply;
(f) an order varying a parent's child support percentage;
(g) an order varying a parent's adjusted taxable income;
(h) an order varying a parent's relevant dependent child amount or multi-case allowance;
(i) an order varying a parent's self-support amount;
(j) an order varying the costs of the children.
(2) An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period.
(2B) A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
(2C)If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
(3) If the court makes an order under this section, the court must:
(a) give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and
(b) cause the reasons to be entered in the records of the court.
(4) Subsection (3) does not apply in relation to an order if:
(a) it is an order made by consent; and
(b) the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.
(5) A contravention of subsection (3) in relation to an order does not affect the validity of the order.”
In summary, the factors that the Court considers in granting leave in relation to an application under ss.111 and 112 of the CSAA are:
·any responsibility, and reason, for the delay in making the relevant application;
·the hardship to the applicant if leave is not granted;
·the hardship to the other party or parties if leave is granted; and
·any other relevant matter.
Provided that the Court is satisfied that it would be in the interests of the parties (and, if applicable, that there are special circumstances in existence), then, at the time it considers the father’s leave applications, the Court also has the power to consider varying the father’s child support income or varying the annual rate of child support payable. Clearly the Court’s power in this respect is discretionary.
Submissions
Both parties provided the Court with oral submissions. Ms J made no submissions.
The father’s submissions
In respect of his application(s) for leave, the father gave the following reasons as to why he has taken so long to seek such:
·firstly, he didn’t know what the CSA was “back in those days”[17];
·secondly, he submitted that he “didn’t really understand any of this process. I still don’t. I still struggle, and I just deal and cope. Way back then, I couldn’t cope with any of this”;[18]
·thirdly, while the father conceded he did not seek advice as to what he could do after receiving the 2006 Objection Decision, he submitted that he “didn’t realise that there was expiry dates, I didn’t know that I could appeal. I didn’t know any of this”;[19] and
·fourthly, he submitted that he was “in no state of mind to understand anything that was going on and I apologise for my vagueness. I was just overwhelmed with other issues at the time”.[20]
[17] Transcript, 16 March 2012, page 20.
[18] Ibid.
[19] Transcript 16 March 2012, page 20.
[20] Ibid.
In other words, the father’s argument is that he did not sufficiently understand the nature of the decisions that the CSA made or his rights to appeal the 2006 Objection Decision and make objections in respect of the 2008 and 2009 change of assessment decisions.[21]
[21] See generally, Transcript 16 March 2012, page 23.
The father also asserts in support of his leave applications(s) that he was suffering from ‘depression’ at the time that he ceased working. He claims that in June 2007 he attended upon his general practitioner,
Dr C, and received medication but was still unable to return to work.
Annexed to the father’s affidavit filed on 21 June 2011, is a letter from Dr C dated 22 April 2010. A further letter from Dr C, dated 17 November 2011, is annexed to the father’s affidavit filed on 25 January 2012.
I note that no objection was made by the mother in respect of the father relying on these letters from Dr C despite the absence of an affidavit from Dr C. It is also not clear from Dr C’s letters whether he knew that they were going to be used by the father in the context of contested child support proceedings. Regardless, I will allow the father to rely on these letters for the purposes of his leave applications, subject to any weight I may place on their evidentiary value.
Dr C’s letter dated 22 April 2010 states:
“Mr Moore has been a patient of mine since 2007. I have treated him for a major depressive illness firstly in 2007 for approximately 18 months, and again some 12 months ago because of a recurrence of that illness.
I believe the substantial cause of his psychological problems has been the resultant stress from the poor access to his children provided by his ex wife. I have found Mr Moore to be very competent from the point of view of providing for his children both physically and mentally. I believe he would provide much needed support to his children and I would encourage as much interaction as is possible for the sake of both his children and himself.”[22]
[22] See Annexure 2 to 4 of the father’s affidavit filed 21 June 2011.
Dr C’s letter dated 17 November 2011 states:
“Mr Moore has been a patient of mine since July 2003. During this time he has suffered with a major depressive disorder and has been dependant on alcohol. His depression commenced around the time of his separation from his ex wife in May 2003. It has been exacerbated by custody issues which have limited his access to his children particularly in view of his wife’s non compliance with court rulings. He has been frequently called upon to mind the children ant his wife’s convience [sic] but been deprived of appropriate custody as determined by the courts. On occasions he has looked after the children without appropriate resources as his wife is said to have failed to notify the appropriate authorities.
Mr Moore has required medication for major depression as well as psychological counselling over this period of time. His mental health has been adversely affected by a series of other stresses throughout the period since 2003. He was involved in a motor vehicle accident in July 2003. He has suffered with recurrent low back pain requiring analgesia and physiotherapy. He has lost two siblings both in their forties to cancer which affected him seriously and a recent colonoscopy led to surveillance for blood borne diseases relating to poor sterilisation protocols by the attending practitioner.
His daughter was sexually abused by his ex wife’s fiancé for a period of years and the resultant trail [sic] and conviction was an extremely stressful time for him. He has also been harassed by his ex wife’s associates for a considerable period.
Mr Moore continues under my care for treatment of his mental health. I believe him to be unfit for work during the above period and he remains so. He has been subject to suicidal intentions on occasions and will require ongoing assessment and treatment into the foreseeable future.” [23]
[23] See Annexure ‘A’ to the father’s affidavit filed 25 January 2012.
In his affidavit filed 21 June 2011 the father states:
“The decision of the CSA are based on a misapprehension that I have the ability to work. I have no ability given my depression and assert that it continues.”[24]
[24] Father’s affidavit filed 21 June 2011 at [12].
Later in that affidavit, the father states:
“The reasons that I did not actively engage in the CSA assessment process is also what I now know to be because of my depression. The child support process just exacerbated my symptoms and denial and avoidance was the best way of dealing with it.”[25]
[25] Father’s affidavit filed 21 June 2011 at [16].
The father also asserts in that affidavit that he relies on his current partner to support him financially.[26]
[26] Father’s affidavit filed 21 June 2011 at [13] and [15].
In relation to the issue as to why he did not object to the 2008 and 2009 change of assessment decision, the father asserted that he attended the CSA office in Wollongong and tried to bring to their attention that he was having the children in his care for more than what the court orders provided for at that time but that he eventually “just gave in, I didn’t know what to do. I didn’t think there was anything I could do.”[27]
[27] Transcript 16 March 2012, page 29.
In relation to the issue of hardship, the father submitted that he was assessed by the CSA at an inappropriate amount and that he did not earn the amount of income that would have generated the relevant assessments.[28]
[28] Transcript 16 March 2012, page 29.
The father also made the following oral submission:
“I understand [what the mother submitted], your Honour, but at the same time I did what capably I could do best and that was to have my children and to care for them and to help take that financial burden from [Ms Moore]. All I’ve ever done is try to have shared access with the children, to make life easier for [Ms Moore] and the children. I’ve never once said to [Ms Moore], ‘I don’t want the children. You can look after them on your own,’ or nothing like that, and, in actual fact, I have had the children more than what the court orders stipulate.
HIS HONOUR: But do I take it that you’re not necessarily agreeing that there may be – are you disagreeing that there would be any hardship that she would suffer if the court does allow your application and goes back and revisits assessments from 2006?
MR MOORE: I believe that both [Ms Moore] and myself have suffered emotionally, physically, financially. I don’t believe it’s just a hardship for [Ms Moore], but I do acknowledge the fact that she has suffered.”[29]
[29] Transcript 16 March 2012, page 25.
As to ‘any other relevant matter’ for the Court’s consideration, the father submitted:
“I suppose I would just like to say all I’ve ever wanted is to share the children, for the children to be a part of my life on a shared basis. I’ve pleaded, I’ve begged [Ms Moore] and, yet, she can just say no at will, without any
HIS HONOUR: Could I just stop you there and I wasn’t a part of the parenting proceedings, but, when I came to Wollongong that day and picked up your matter, hadn’t you recently agreed to resolve the parenting proceedings?
MR MOORE: Well, that was the first time, your Honour, that I had actually gone legally to fight for the children because I couldn’t get any satisfaction by talking with [Ms Moore]. Although she would let me have the children, she would never make it bound through the …courts.”[30]
[30] Transcript 16 March 2012, page 31.
In this respect, the father does acknowledge that he chose not to proceed with the parenting application – as evidenced by the Orders made by Altobelli FM on 2 September 2010.
In closing and in response to the mother’s submissions, the father stated the following:
“I had fears if I pursued it I would have lost contact with my children. Whether or not it went back to the court orders from ’04 or whether or not it would just be another six month taking of my children or 12 months. That’s how I felt. And that’s why I didn’t pursue it. The Child Support informed me that it did nothing financially. They couldn’t backdate. I felt at a loss.”[31]
[31] Transcript 16 March 2012, page 45.
In summary, the father submissions are that his particular medical issues, including mental health issues, affected his ability to work and also possibly had some impact on his decision-making. He asks that the Court take these issues into account by way of explanation as to why he did not seek to redress the child support issues earlier.[32]
[32] Transcript 16 March 2012, page 43.
The mother’s submissions
In relation to the ‘delay’ issue, the mother submitted that the father has not provided the Court with any reason for his delay in making an objection or appeal to the CSA regarding the 2006 decision. Moreover, the mother submitted that the father has not addressed the issue of any hardship that may be placed upon him should leave not be granted.[33]
[33] Mother’s affidavit filed 22 February 2012 at page 1 of Annexure “A”.
The mother also asked the Court to accept that every change of assessment that has been made by the CSA has been accompanied by letters from them that outlines what a person can do as a result of a decision being made if they are satisfied about it.[34]
[34] Transcript 16 March 2012, page 24.
In her most recent affidavit the mother also asks the Court to note that the father’s maintenance arrears payable are currently in the sum of $60,350.92.[35] She further asserts that the father received lump sum payments from [P] as a result of his employment being terminated in the amount of some $60,000.00. The mother also asks the Court to accept that the father immediately transferred these monies into his partner’s mortgage account. The mother also refers to the sum of $35,000.00 that the father received from the parties’ 2004 property settlement and asserts that this sum was also paid into his partner’s mortgage account.
[35] See Mother’s affidavit filed 22 February 2012, final page of document (no Annexure letter given).
As to the ‘hardship’ issues, the mother asserted that as she had legitimately gone through the assessment process, there would be hardship if leave were granted that required her to go back and re-argue the relevant assessments, particularly in the context of enforcement proceedings.[36]
[36] Transcript 16 March 2012, page 29.
In addition, during her oral submissions the mother stated that:
“…all I can say is that, you know, I’ve been raising five children since back then and I haven’t been in a pretty good state of mind either. I’ve had to still get up and go to work every day, I’ve had to provide for them and I had to look after them, and whether or not I’m in a bad state of mind, I’ve still got to get up and go to work, or else my kids don’t eat and they don’t have a roof over their head, and it’s not – the kids go without. They don’t go without everything …”[37]
[37] Transcript 16 March 2012, page 25.
In her most recent affidavit the mother asserts that she had not been able to afford sporting activities for [Y] and [Z] last year and that she will be unlikely to be able to so this year due to strained finances. She asserts that she has no motor vehicle and cannot afford dental treatment, excursions for the children at school, prescriptions, haircuts and so on and has at times had to go to Anglicare at Wollongong to seek assistance. She goes on to state that:
“The prospects of my future and the happiness of my children has diminished terribly since the non-payment of child support by
Mr Moore. I have been left to fulfil all financial responsibility for the children on my own. I feel that without the child support debt being recover, my spirit will continue to decline. I am struggling to meet the essential needs of my family and I fear that one by one as the children get older, their prospects of worked in towards their desire career paths will disappear because of the inability to afford to pursue them.”[38]
[38] Mother’s affidavit filed 22 February 2012 at page 8of Annexure “A”.
In relation to her own personal difficulties, the mother asserted the following:
“In the nine years since my marital separation with Mr Moore, I have continually suffered with major depression. I suffered greatly with the prospects of raising five children on my own with minimal income and limited resources. When Child Support ceased being paid, I struggled immensely to put food on the table, support my five children with education, sporting, clothing, activities, excursions etc. I could not afford to pay my mortgage and after months of making repayments of what I could, I eventually reached the point of losing my home and my car along with all my other assets through bankruptcy…”[39]
[39] Mother’s affidavit filed 22 February 2012 at page 5 of Annexure “A”.
In her most recent affidavit the mother outlines the hardship that she asserts has been caused to her emotionally and financially and attaches material in support of this. She states that this hardship will “undoubtedly continue if Mr Moore continues to avoid child support and the debt that he currently owes.”[40]
[40] Mother’s affidavit filed 22 February 2012 at page 6 of Annexure “A”.
The mother also asserts that she is suffering from post traumatic stress disorder and is on anti-depressants. In her most recent affidavit she states that “the reason for disclosing this information is simply to show that whilst suffering from a major depressive illness, I have had to maintain my employment so that I can meet my responsibility of supporting my children.”[41]
[41] Mother’s affidavit filed 22 February 2012 at page 6 of Annexure “A”.
The mother also made submissions disputing the father’s assertions that he was spending more time with the children than the assessments contemplated.[42] The mother asserted that she has never received anything from the CSA enquiring about the time the children were spending with the father and that there was a long period of time that they did not spend any time with the father.[43] The mother says that this was not because, as the father asserts, she “took the kids away” but rather that there were considerable child abuse issues that were reported to the then Department of Community Services and the like.[44]
[42] See Transcript 16 March 2012, page 37-42.
[43] Transcript 16 March 2012, page 40-41.
[44] Transcript 16 March 2012, page 41.
The mother also refutes the father’s allegations that she has not complied with court orders and asserted that she has encouraged the children to spend time with the father.
In response to medical issues raised by the father, the mother submitted that:
“Just in regards to the medical certificates, if you go through them carefully and look at them, they – well, I don’t think that they all add up really. Some say that – some give different dates, some say that Dr C started seeing Mr Moore at a certain time of year or certain year, and then another one says he started seeing him at a different time, and one goes on to say that he has never been given medication. Another says that he has been given medication. The only way I can respond to the medical evidence, as a normal person, is that I suffer depression really badly – or I have. I’ve put evidence in my affidavit of the severity of my depression that I’ve suffered, and I’m not saying that everyone is the same that suffers depression, but I don’t believe that sitting at home and doing nothing about it is going to help…”[45]
[45] Transcript 16 March 2012, page 43-44.
The mother also drew the Court’s attention to the following statement by Dr C in his letter dated 22 April 2010:[46]
“I have found Mr Moore to be very competent from the point of view of providing for his children, both physically and mentally.”
In her most recent affidavit the mother states that Dr C has been “fed” information by the father and has used this in his diagnosis. The mother highlights inconsistencies in Dr C’s letters as to how long he has treated the father and notes that she has lodged a complaint with the Health Care Complaints Commission regarding the references made about her and her family.[47]
[46] Mother’s affidavit filed 22 February 2012 at page 1 of Annexure “A”.
[47] Mother’s affidavit filed 22 February 2012 at page 1-2 of Annexure “A”.
The mother also notes in her most recent affidavit that the father has admitted that he has not applied for any Centrelink benefits as a result of his illness and incapacity to work. The mother asserts that the father “…cannot prove that he has not had the capacity to work.”[48]
[48] Mother’s affidavit filed 22 February 2012 at page 3 of Annexure “A”.
In summary, the mother asks the Court to look at the father’s medical evidence with caution and submits that such does not necessarily demonstrate that the father could not work. The mother also submits that the father’s medical evidence is not sufficient to demonstrate that the father was not able to consider or act upon his child support rights at the relevant times.[49] In her most recent affidavit she asserts that:
“Mr Moore simply chose NOT to work and I believe that
Mr Moore has made this decision solely based upon avoiding his child support debt.”[50]
[49] Transcript 16 March 2012, page 44.
[50] Mother’s affidavit filed 22 February 2012 at page 5 of Annexure “A”.
Discussion and findings
I will firstly consider the s.110 leave to appeal application before considering the s.112 leave applications to vary the administrative assessments.
The s.110 leave to appeal application
As stated previously, the factors that the Court should consider, in light of the available evidence, are:
·the reasons for the father’s failure to file the appeal within the time prescribed and/or the reasons to explain his delay in seeking an extension of time for the filing of the appeal;
·the history and nature of the litigation;
·the conduct of the parties (including as to compliance with previous orders);
·the consequences to the parties of the grant, or the refusal, of the extension of time; and
·the desirability of finality in litigation and the relevance of costs orders.
Reasons to explain failure to file appeal
I find the father’s reasons for not filing the appeal against the 2006 Objection within the required period unconvincing. He was clearly given notice of his right to appeal by the CSA in the Objection decision itself. I find the father either deliberately chose not to file an appeal, or otherwise chose not to seek further advice about whether he should appeal, and if so, how he should go about it.
I also find the father’s reasons to explain his delay in seeking an extension of time for the filing of the appeal unconvincing. He only sought to do so late in the day, and in the context of an enforcement application being filed by the mother.
I am not persuaded by the father’s submission that his diagnosis of depression helps to explain his failure to appeal, or seek an extension to appeal, in a timely fashion. I note that Dr C states in his letter dated 22 April 2010 that he only started treating the father “for a major depressive illness” in June 2007, which is well after the deadline for the filing of the required appeal.
History and nature of the litigation
The parties, as stated, have a long history before this Court and the Family Court of Australia.
It is also clear that the father now agitates his leave applications in the context of enforcement proceedings being pressed by the mother. In this respect I agree with the comments made by Riethmuller FM in Bagala that this acts to circumvent the substance of the child support scheme which provides for all change of assessment decisions to be administrative, and only to be heard by a Court in specified circumstances.[51]
[51] Bagala & Bagala [2009] FMCAfam 953 at [23].
The conduct of the parties
Similar to his arguments on not filing an appropriate appeal ‘in time’, the father submits that he did not know about such an application.
Rather disappointingly, the father appears to have paid only a sum of $3,000.00 in child support since 2006.[52] This is in spite of the fact that, on the father’s own case, he admits to the existence of an obligation and liability to pay child support.
[52] Transcript, 16 March 2012, page 7.
I also note that despite initially seeking parenting orders in his response to the substantive proceedings, the father brought no contravention application at the relevant time notwithstanding his assertions that the parenting orders were not being complied with by the mother.
The consequences to the parties
Should the father fail in the s.110 leave to appeal application, he would have exhausted his last opportunity to file an appeal against the 2006 Objection Decision. The father would consequently remain liable for the assessed amount. Doubtless, the father would face some financial issues in meeting his obligations in the assessed amount should the enforcement proceedings meet with success. However, I again note the father’s admissions to the Court that he paid large sums of money into the loan account secured by the mortgage over his partner’s house, funds which might have been applied to offset his child support obligations.
Moreover, the Court has been presented only with letters from the father’s general practitioner stating that the father has been unable to work for periods in the past. Apart from conflicting assertions about medication prescribed and the father’s recollection that he “did actually see a psychiatrist […] in ‘05/06” (although these consultations may have been with a psychologist named Ms V),[53] at this stage the Court has no evidence to persuade it that the father has or will continue to have no capacity to obtain employment. The father states in his affidavit that he is financially supported by his partner.[54] There is no evidence that he has satisfied Centrelink that he is entitled to receive social security benefits based on an inability to work.
[53] Transcript, 16 March 2012, page 41-43.
[54] Father’s affidavit filed 21 June 2011 at [13] and [15].
The consequences to the mother should the s.110 leave to appeal application be successful would be the further prolongation of enforcement proceedings which were commenced in 2009. This is in circumstances where the father has not only sat on his hands for some 6 years with respect to his appeal rights, but in which in that same period, the evidence is that only the sum of $3,000.00 has been paid in child support to the mother. This sum equates to somewhat less than $2.00 per week for each of the parties’ 5 children. On the evidence it is clear that the mother has suffered considerable hardship and would continue to so suffer by any additional delay in the finalisation of the proceedings.
The desirability of finality in litigation (and where relevant, the relevance of costs orders)
The parties have been embroiled in disputes in various fora since 2004 when proceedings were commenced in the Family Court of Australia. Since then, they have engaged in a number of child support assessment review processes engaged in, culminating in the proceedings currently before this Court, which were commenced in 2009. Both of the parties would benefit from the closure and certainty that a conclusion to these proceedings would bring.
Both parties have had a full opportunity to present their evidence and submissions during these proceedings. Both have been heard and their positions considered. For the father’s part, he would doubtless appreciate a definitive ruling on his liability. For the mother, it goes without saying that a finalisation of the present litigation foreshadows an easing of her poor financial circumstances.
As both parties are self-represented litigants, I do not propose to deal with the issue of the relevance of costs orders.
The s.112 leave applications to vary administrative assessments
As stated previously, the factors that the Court considers in granting leave in relation to an application under ss.111 and 112 of the CSAA, in light of the available evidence, are:
·any responsibility, and reason, for the delay in making the relevant application;
·the hardship to the applicant if leave is not granted;
·the hardship to the other party or parties if leave is granted; and
·any other relevant matter.
Provided the Court is satisfied that it would be in the interests of the parties, then at the time it considers the father’s leave applications, the Court also has the power to consider varying the father’s child support income or varying the annual rate of child support payable. Clearly the Court’s power in this respect is discretionary.
The delay in making the application(s)
The father’s delay in making the s.112 leave applications to vary administrative assessments is not as lengthy as was the delay in making the s.110 leave to appeal application, but the father’s explanation for his failure to lodge an objection was explained by him as being for the same reasons.
In particular, the father claimed that he did attend an office of the Child Support Agency, following his receipt of either the 2008 or the 2009 change of assessment decisions. In his words, he “was trying to bring to their attention that I was having access to my children more than what the court orders stipulated.”[55] The father went on to say:
“when I was proving or showing the lady behind the counter the calendars and proving – substantiating the amount of time I have with my children, they then went on to say, ‘Well, we will have to put this information to [Ms Moore]…[’]
[…]
And they did notice that there was a substantial increase of time in access that I have had the children. However, they said backdating wasn’t part of the criteria, so the money issue would still stay, and I knew as soon as it put anything like that towards [Ms Moore], I really believed at the time that she would then take the children – the extra time that I had with my children, she would take them from me. Maybe it was a bad decision I made, your Honour, I don’t know, but, at the time, my biggest interest was to have my children. I needed my children.
HIS HONOUR: All right. So I’m just trying to understand in respect to the criteria, the reason for the delay is, although you did something about it at the time by going down and talking to the agency – I’m just trying to understand why you didn’t go to the next step.
MR MOORE: Okay. I think I just gave in. I didn’t know what to do. I didn’t think there was anything I could do.”[56]
[55] Transcript, 16 March 2012, page 28.
[56] Ibid, pages 28-29.
The notion that the father was somehow unable to function and make decisions during this period is perhaps at variance with Dr C’s assessment of the father “to be very competent from the point of view of providing for his children both physically and mentally.” The fact remains that the processes available to the father to seek a review of the 2008 and change of assessment decisions were known to him from his experience in seeking the 2006 Objection Decision. In addition, there is evidence that the letter from the CSA dated 28 April 2008, which enclosed the Notice of Decision and accompanying reasons for the 2008 change of assessment decision, provided information regarding the review options available to the father.
In the context of the 2006 Objection Decision, where the father took advantage of the administrative review processes available to him through the Child Support Agency, the father’s claims that he “didn’t know what to do” and his purported fears that the mother might deny him extra time with the children ring hollow.
The hardship to the father if leave is not granted and to the mother if leave is granted
Clearly, as with the s.110 leave to appeal application, the father faces the possible hardship of being liable for the currently assessed child support amounts with the reality that the mother has already commenced enforcement proceedings against him for those amounts. I refer to my comments in paragraphs 122 to 124 herein.
Any other relevant matter
I refer to my previous comments.
Decision
Having considered the matters raised and the orders sought in light of the relevant legislation I am satisfied:
·firstly, that leave to appeal under s.110 of the CSAA (as it existed in 2006) should be refused; and
·secondly, that leave to vary the relevant administrative assessments pursuant to ss.111 and 112 of the CSAA should also be refused.
As a consequence the Court declines to make the orders sought by the father to vary the relevant administrative assessments under s.111 (as it existed in 2006) and s.118 of the CSAA (as applicable).
There will be orders dismissing the orders sought by the father in his Further Amended Response filed 25 January 2012.
In respect of the substantive enforcement proceedings, I note that no request has as yet been made for an order under s.72C of the Child Support (Registration and Collection) Act 1988 (Cth).
These proceedings will be listed for mention hearing to consider whether the CSR wishes to take active part in these enforcement proceedings, to make further directions in the matter and to consider whether the matter is suitable to be set down for final hearing of the mother’s enforcement application. The Court will also consider whether the matter should return to the Wollongong Registry given that the substantive proceedings were filed in that Registry and both parties reside in the Wollongong area. Such transfer would depend upon which Registry might be able to offer the parties the earliest hearing date and whether the CSR proposes to intervene.
There will be Orders and notations of the Court to reflect these reasons.
I certify that the preceding one-hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 3 July 2012
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