Myers & Myers
[2011] FMCAfam 1104
•24 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MYERS & MYERS | [2011] FMCAfam 1104 |
| FAMILY LAW – Application for review of Registrar’s decision not to urgently list substantive application – whether exercise of power reviewable. |
| Federal Magistrates Act 1989, ss.102(2), 103(1), 104(2) Family Law Act 1975, s.37A Federal Court of Australia Act 1976, s.35A Child Support (Registration and Collection) Act 1988, Part VIIIA Division 1, s.111C Federal Magistrates Court Rules 2001, rr.2.06(a), 4.03(2), 6.19, 20.00A(1), 20.02(3), 20.03, 25A.01, 25A.07(2) Federal Court Rules 2011, O.46, r.7A |
| Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42, (2003) 128 FCR 353 Paramasivam v Randwick City Council [2005] FCA 369 Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others [2008] FCAFC 162, (2008) 170 FCR 426 Satchithanantham v National Australia Bank [2010] FCAFC 47 Lynch & Dunstan [2011] FMCAfam 389 Zeller & Whitby [2011] FMCAfam 431 |
| Applicant: | MR MYERS |
| Respondent: | MS MYERS |
| File Number: | PAC 2036 of 2009 |
| Judgment of: | Halligan FM |
| Hearing date: | 17 October 2011 |
| Date of Last Submission: | 17 October 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 24 October 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Applicant In Person |
| Solicitors for the Respondent: | No Appearance |
ORDERS
The applicant is exempted from compliance with the applicable rule as to the time for service of the application filed on 7 October 2011 on condition that the applicant cause the respondent to be personally served with sealed copies of that application and the documents in support, his review application and the affidavit in support, and this order by 12 noon on 18 October 2011.
The application filed on 7 October 2011 shall be listed before me at 9.30 am on 24 October 2011.
IT IS NOTED that publication of this judgment under the pseudonym Myers & Myers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2036 of 2009
| MR MYERS |
Applicant
And
| MS MYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 September 2011 the applicant sought to file an application for a stay in relation to his child support (the substantive application) and asked that it be listed before the Court urgently.
Between that date and 7 October 2011, when the substantive application was actually filed in the Registry, a Registrar directed that the substantive application be listed in the normal course, noting that the applicant had received an objection decision on 15 July 2011, that a review (presumably an application for review to the Social Security Appeals Tribunal (the SSAT)) does not operate as a stay, and noting that a stay application should have been lodged at an earlier date. The Registry then listed the substantive application on 23 November 2011.
On 10 October 2011, the applicant filed an application for review of the Registrar’s decision to decline to list the substantive application urgently (the review application). These reasons relate to my decision on the review application.
The review application was brought by application in a case in the substantive proceedings and thus prima facie appears to be brought under s.104(2), Federal Magistrates Act 1989 and Division 20.2, Federal Magistrates Court Rules 2001. However, after having his attention drawn to two recent decisions in this Court holding that there was no right of review under s.104(2) of a decision of a Registrar concerning the fixing of a court date, the applicant indicated that in the alternative he sought review of the Registrar’s decision under the Administrative Decisions (Judicial Review) Act 1977.
The applicant pressed his application in the first instance as an application under s.104(2), on the basis, he submitted, that in deciding his application for urgent listing, the Registrar was exercising the power under s.102(2) to exempt a party to proceedings from compliance with a Rule (s.102(2)(h)).
On 17 October 2011 I determined that the Registrar’s decision was reviewable under s.104(2) and ordered as follows:
“1. The applicant is exempted from compliance with the applicable rule as to the time for service of the application filed on 7 October 2011 on condition that the applicant cause the respondent to be personally served with sealed copies of that application and the documents in support, his review application and affidavit in support, and this order by 12 noon on 18 October 2011.
2. The application filed on 7 October 2011 shall be listed before me at 9.30 am on 24 October 2011.”
These are my reasons for so ordering.
References hereafter in these reasons to sections are to sections of the Federal Magistrates Act and references to Rules are to provisions of the Federal Magistrates Court Rules, unless otherwise indicated.
The right to seek review
The right to apply to the Court to review the exercise of a power by a Registrar is in the following terms (s.104(2))-
“(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Magistrates Court for review of that exercise of power.”
To be reviewable under this provision, the power, the exercise of which by a Registrar is sought to be reviewed, must be a “power of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1)”.
Subsection 102(2) provides-
“(2) The following powers of the Federal Magistrates Court may, if the Federal Magistrates Court or a Federal Magistrate so directs, be exercised by a Registrar:
…
(h) the power to make an order exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court;
…”
Subsection 103(1) provides-
“(1) The Rules of Court may delegate to the Registrars any of the powers of the Federal Magistrates Court, including (but not limited to) all or any of the powers mentioned in subsection 102(2).”
I observe that ss.102(2), 103(1) and 104(2) echo provisions of the Federal Court of Australia Act 1976 in relation to the Federal Court of Australia (s.35A), and of the Family Law Act 1975 in relation to the Family Court of Australia (s.37A). In each case, an exercise of a power under s.35A or s.37A of those Acts is reviewable by the relevant Court.
Returning to the provisions applicable to this Court, the Rules contain provisions delegating powers to Registrars pursuant to s.103(1), r.20.00A(1) providing-
“(1) For subsection 103 (1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Federal Magistrate for the exercise of the power.”
I will refer to Registrars who are approved, or who are in a class of Registrars approved, by the Chief Federal Magistrate for r.20.00A(1) as approved Registrars.
There then follows in r.20.00A(1) a table of items identifying powers delegated to approved Registrars. Item 2 of the Table lists all of the powers in s.102(2), including the power referred to in s.102(2)(h), “the power to make an order exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”.
The specific powers referred to in s.102(2) are powers of the Court. The subsection says they are. The specific powers of the Court listed in s.102(2) are among the powers delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1).
In my view, the unambiguous meaning of ss.102(2), 103(1) and 104(2) is that the exercise by an approved Registrar of any of the powers listed in s.102(2) that are delegated to approved Registrars (and all of them have been) is reviewable by the Court under s.104(2). Prima facie, the exercise of any other power delegated to approved Registrars by r.20.00A(1) is also amenable to review under s.104(2).
As no issue about this was raised before me, I will proceed on the basis that the Registrar whose exercise of power the applicant seeks to have reviewed in this case is a Registrar approved, or in a class of Registrars approved, by the Chief Federal Magistrate for r.20.00A(1).
Thus, the threshold issue for determination in this case is whether the power exercised by the Registrar in dealing with the applicant’s request for urgent listing of his substantive application a power delegated to approved Registrars by a rule made pursuant to s.103(1), and hence amenable to review under s.104(2)?
It is not necessary for me to consider whether a right of review under s.104(2) arises in relation to the exercise of a power delegated to approved Registrars by r.20.00A(1) if the Registrar who exercised the power was not, at the time of the exercise of the power, approved, or in a class of Registrars approved, by the Chief Federal Magistrate for r.20.00A(1).
The source of the power exercised by the Registrar
To consider what power the Registrar exercised in determining the applicant’s request for early listing, in my view it is necessary to consider what Rules, if any, impinge on the allocation of a court date on the filing of an application.
Rules of Court relevant to listing an application
The Rules do not require the Registrar or any other member of the Court’s staff to allocate a hearing date or first Court date to an application. The Rules presuppose that there will be a first Court date or hearing date for an application (see Division 10 and the approved forms of, for example, Initiating Application (Family Law) and Application in a Case, and rr.6.19 and 25A.07(2)).
Under the general procedural provisions of Chapter 1 of the Rules, service of an application must be effected not less than 3 days before the day fixed for the hearing for an Application in a Case and not less than 7 days before the day fixed for the hearing of any other application (r.6.19). A respondent wishing to file a response to an application must do so within 14 days after service of the application to which the response relates (r.4.03(2)).
The Rules also make specific, different provisions for certain types of application. For example, Part 25A of the Rules applies to child support and child maintenance matters, and provides that an application or appeal to which the Part applies (as to which, see r.25A.01), other than “an application for an order staying a decision or an urgent order for child maintenance”, must be served at least 28 days before the hearing date (r.25A.07(2)). There is no separate provision in Part 25A as to the time for filing a response.
Different powers may be involved depending on the circumstances under which a Registrar deals with the issue of allocating a Court date for an application. In my view, there are three discrete scenarios that arise-
a)Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;
b)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and
c)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.
Applications concerning a Court date not seeking to alter a time prescribed by the Rules
The scenarios referred to in subparagraphs (a) and (b) of the preceding paragraph do not involve the exercise of any power under the Rules, or any power of the Court. They involve purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court. They do not involve the exercise of a power of the Court delegated to Registrars under r.20.00A(1).
Therefore, in my view it is clear that decisions about allocation of a Court date for an application that do not involve consideration of a shortening to a time fixed by the Rules are not amenable to review under s.104(2).
Applications to alter a time prescribed by the Rules
An application to alter a time prescribed by the Rules is in my view quite different. Usually, with what are often referred to as short notice or abridgment of time applications, the relevant time to consider is the prescribed time for service of the relevant application. In my view, unfettered by prior authority, shortening or abridging a time fixed by the Rules falls within the power described in s.102(2) as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”, which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1).
If a party seeks urgent listing on a date that would not permit compliance with the prescribed time for service of the substantive application and seeks “short notice” or an abridgment of that time, in my view the applicant is seeking to be exempted from compliance with the normal time for service as fixed by the Rules, either unconditionally or on terms. A direction that service of an application be effected by a specified date or within a specified time, being less than the prescribed period before the Court date, is an exemption from compliance with the Rules on terms.
Thus, unfettered by prior authority, I am satisfied that a decision of an approved Registrar to grant or refuse a short notice or abridgment of time application is reviewable under s.104(2) if the applicant seeks a court date within the prescribed time for service of the substantive application.
Prior authorities
There are two recent decisions of this Court on the issue of whether the exercise of power by a Registrar in relation to the allocation of a first Court date for an application is reviewable under s.104(2), in both cases it being found that the decision was not reviewable. Those cases are Lynch & Dunstan, [2011] FMCAfam 389 and Zeller & Whitby, [2011] FMCAfam 431.
To the extent that these decisions relate only to the allocation of a court date, I respectfully agree with them. However, while they both in broad terms couch the issue under consideration as being whether a decision of a Registrar to allocate a court date on an application is amenable to review under s.104(2), I respectfully disagree that this is a sufficient analysis or categorisation of the decisions that may be involved in a Registrar allocating a first Court date, as I have sought to explain above.
In Lynch, Burchardt FM decided that there was no right of review of a decision of a Registrar refusing to urgently list an application that included an application for an order that leave be granted to serve the application “on short notice” (at [3]). His honour said-
“Although the application did not say so in terms, what was really being sought was that there be an early date before a Federal Magistrate.”
However, his Honour also later said (at [16])-
“(W)hether the act of the Registrar in setting a time date, which can be properly construed, I think, as refusing to abridge time any further, was a power of the sort identified in either s.102 of this Court’s Act or in the (Family Law) Act and Rules set out at s.37A of the Act and O.18 of the Family Law Rules may be open to question.”
His Honour proceeded (at [17])-
“The particular part which I personally think is engaged is not one to which Registrars of this Court are attributed by s.102 or the Court’s Rules in terms but whether that be so or not, the decision to allocate a particular date is not, in my respectful view, an act of the sort which the Full Court in the National Bank case identified as of a judicial character. It does not involve anything more than an administrative assessment of the materials filed and the administrative allocation of a date. Accordingly, … it follows that this application for review must be incompetent because the matter sought to be reviewed was not an exercise of judicial power.”
The facts recited in the judgment are that in his review application filed on 17 March 2011, the applicant was seeking that the hearing of at least the claims for interim relief in a substantive application filed on
15 March 2011 take place “this week” ([1], [3]). The substantive application having sought “short notice” and the review application having sought a hearing of the substantive application “this week”, it might be inferred that the applicant was seeking to abridge the time for service of the substantive application. But it is not clear from the judgment that this is the basis on which the applicant pressed the review application or that this is the basis on which his Honour dealt with the review application.
While his Honour referred to a refusal by the Registrar “to abridge time any further”, the categorisation of the application decided by the Registrar as being for an early date before a Federal Magistrate, and the categorisation of the decision as being “to allocate a particular date”, suggests to me that the basis on which the matter was presented to his Honour, and the basis on which his Honour decided the issue, was that he was dealing with an application falling within either the first or second of the scenarios I identified above (at [23]), and with respect, I agree with his Honour that a decision by the Registrar about a court date simpliciter does not involve the exercise of a power of the Court delegated under r.20.00A(1), and hence is not reviewable under s.104(2).
In Zeller, Altobelli FM held that there was no right under s.104(2) to apply to the Court to review the decision of a Registrar refusing an application “to abridge time so that the matter could be dealt with earlier”, the substantive application having been filed on
12 March 2011 when it was given a first Court date of 4 July 2011 (at [1]).
His Honour identified the preliminary issue for determination by him, which ultimately was determinative of the review application, as “whether the Court has jurisdiction to review a decision of a Registrar not to abridge time” (at [4]). What time the applicant sought to have abridged is not apparent from the judgment.
Of the powers under s.102(2), Altobelli FM said (at [6])-
“It is significant to note that the delegated powers do not include the power to abridge time so that a matter can be dealt with earlier than the date allocated in the registry at the time of filing. The delegated powers are indeed broad. Most of the powers facilitate the orderly and efficient case management of a matter after the proceedings have been commenced. Some of the powers deal with the proceedings at a very early stage, e.g. dispensing with service and ordering substituted service. What all of the powers seem to have in common is that proceedings have actually been commenced, i.e. an application has been filed and a Court date allocated. None of the powers seem to deal with any controversy about when the first Court date should be. Indeed one way of characterising the powers delegated to Registrars in Regulation 20A (sic) is that they facilitate the determination of issues between the parties to the litigation. Indeed perhaps one reason why the power to abridge time is not included here is because this is an issue between the applicant and the Court, and not an issue between the parties.”
I respectfully agree that the usual steps taken by registry officers in receiving applications for filing and performing the various functions associated with filing applications, including the allocation of a first Court date in the usual course, are administrative in nature and, more importantly in my view for the right to seek review under s.104(2), do not involve the exercise of any powers of the Court falling within s.104(2).
In referring to “the power to abridge time so that a matter can be dealt with earlier than the date allocated in the registry at the time of filing”, his Honour did not refer to abridging a time for service fixed by the Rules. Therefore, as with the decision in Lynch, it is not apparent that the issue raised and determined in Zeller was whether a decision of a Registrar on an application seeking the shortening of a time fixed by the Rules was amenable to review under s.104(2).
Both Burchardt FM and Altobelli FM relied on decisions of the Federal Court of Australia categorising decisions of a Registrar of that court to refuse to file a document as administrative.
In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs, [2003] FCAFC 42, (2003) 128 FCR 353, the Full Court of the Federal Court of Australia determined an application for leave to appeal against a direction of a judge under O.46 r.7A of that Court’s Rules to a Registrar not to accept a document for filing. In Paramasivam v Randwick City Council, [2005] FCA 369, Sackville J dealt with an application to summarily dismiss the applicant’s application for an order of review under the Administrative Decisions (Judicial Review) Act in relation to a direction of a judge of the Federal Court under O.46 r.7A to a Registrar not to accept a document for filing and the Registrar’s consequent refusal to file the document. Satchithanantham v National Australia Bank, [2010] FCAFC 47 was an appeal against the dismissal of an application for review, apparently under the Administrative Decisions (Judicial Review) Act, of a decision of a Registrar to refuse to file a document under O.46 r.7A.
In Bizuneh, the Full Court, in refusing to grant leave to appeal because no appeal lay from the direction of the judge to the Registrar, said that the judge’s direction was administrative in character, not judicial, being in support of the Registrar carrying out administrative functions for the Court. The Full Court observed that the judge’s direction was “not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power”.
Despite expressing “some doubt about the reasoning in Bizuneh insofar as it classifies a direction of a Judge pursuant to O.46 r.7A as ‘administrative in character’”, Sackville J in Paramasivam nonetheless considered himself bound by that decision.
Neither of these cases are determinative of the issue before me, as they did not involve a review of the Registrar’s decision under s.35A, Federal Court of Australia Act. There was thus no consideration of whether the power was one arising under s.35A, the equivalent of ss.102(2) and 104(2).
In Satchithanantham, the trial judge rejected a submission on behalf of the respondent that the Registrar’s exercise of power under O.46 r.7A was reviewable under s.35A of the Federal Court of Australia Act, because the power was not one conferred on the Registrar by a direction under that section, but rather was a power directly conferred on the Registrar by the Rules. In the course of its judgment, the Full Court referred at length to the decision in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others, [2008] FCAFC 162, (2008) 170 FCR 426, where the Full Court held that where a Registrar was directed by a judge pursuant to O.46 r.7A(2) not to accept a document for filing, the Registrar’s conduct was not open to review by the Court under s.35A. The Full Court in Satchithanantham adopted the reasoning of the Full Court in Manolakis in holding that the refusal by a Registrar to file a document under O.46 r.7A was not the exercise of a power under s.35A and was not subject to review under that section.
The source of the power exercised by the Registrar in Lynch and in Zeller was not identified. In this case, if the power is one conferred by a delegation rule made for s.103(1), and not independently conferred on the Registrar under the Rules, then Satchithanantham and Manolakis do not resolve the issue.
As an aside, I note that there is a provision in this Court’s rules similar to parts of O.46 r.7A (r.2.06(a)). There is nothing on the face of r.2.06 to suggest it is made under s.103(1). The decisions in Satchithanantham and Manolakis may well be binding on this Court in categorising the nature of the Registrar’s power under r.2.06(a) and as to whether the exercise of the power is reviewable under s.104(2).
In the result, I do not consider that the Federal Court authorities referred to are determinative of the issue before me, nor am I satisfied that the issue is unequivocally decided in either Lynch or Zeller. Having considered these authorities, I remain of the view that the exercise of a power by an approved Registrar to shorten or abridge a time fixed by the rules in relation to proceedings is the exercise of the power referred to in s.102(2)(h), which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1), and is amenable to review under s.104(2).
Is the Registrar’s decision in this case reviewable?
Based on the foregoing, the first question to be addressed, in determining whether the Registrar’s exercise of power in this case is reviewable, is what was the applicant asking the Registrar to do when the decision he seeks to have reviewed was made.
The applicant is not legally represented. He simply wants his substantive application listed urgently. When I asked him how urgently he had asked the Registrar to list his application, he indicated he had sought a listing as soon as possible, and mentioned within a week or two weeks.
It is no easy task to determine what powers the Registrar may have had to rely on to determine the application for urgent listing in this case. That is because whether or not the Registrar was being called on to shorten a time fixed by the Rules depends on what Rule applied, and what Rule applied is unclear.
As mentioned, r.6.19 requires that an application (other than an application in a case) be served not less than seven days before the hearing of the application. However, the applicant’s substantive application is brought under the Child Support (Registration and Collection) Act 1988 (the Registration Act), and is thus governed by Part 25A of the Rules (see r.25A.01(a)). An application to which Part 25A applies must be served at least 28 days before the hearing date, unless it is “an application for an order staying a decision or an urgent order for child maintenance” (r.25A.07(2)).
The provisions of Division 1 of Part VIIIA and s.111C of the Registration Act suggest that, at least so far as remedies available under that Act and the Child Support (Assessment) Act 1989 (the Assessment Act) are concerned, there is no power to stay a decision, only power to stay the operation or implementation of any or all of the provisions of the Registration Act and the Assessment Act, and this in fact is what the applicant seeks in his substantive application. Thus, it is unclear whether the time for service of the substantive application was 28 days or 7 days.
As the applicant indicated he sought a listing within a week or two, I propose to proceed on the basis that whichever time for service of the substantive application applied, the Registrar was being asked to exempt the applicant from compliance with it, and was therefore being asked to exercise the power in s.102(2)(h).
I am therefore satisfied that the Registrar’s decision in this case is reviewable under s.104(2).
The review must proceed by way of a hearing de novo and the Court may receive the evidence before the Registrar and by leave any further evidence relied on by the applicant (r.20.03).
In this case, the applicant has not served the respondent with his review application, despite the requirement to do so within seven days after it is filed (r.20.02(3)). In the circumstances of this case, I dispense with service of the review application on the respondent.
Determination of review application
The reason the applicant says the time for service of his application should be shortened is because he is concerned the Child Support Agency (the CSA) will take enforcement action against him for arrears of child support in circumstances where he is seeking to change the assessments on which those arrears arose, and he is concerned if the CSA does so, he will be seriously prejudiced in relation to the result he seeks to achieve in his pending application before the SSAT, and he will suffer financial hardship.
The applicant’s child support liability relates to the parties’ children, a 15 year old daughter and a 12 year old son.
Chronology
A brief chronology is as follows, based on the applicant’s evidence, which I accept for the purposes of the review application.
On 7 April 2011, the CSA decided cross-applications by the parents to change the child support assessments for the period 5 April 2009 to
31 January 2012, the mother seeking an increase of the annual rate of child support to $15,600 and the applicant father seeking a reduction to nil. The decision was to determine the parents’ child support income amounts at specified sums, having the result of significantly increasing the annual rate of child support payable by the father from
1 February 2011. A copy of the change of assessment decision was forwarded to the applicant under cover of a letter dated 18 April 2011.
On 16 May 2011, the applicant objected to the change of assessment decision.
On 30 May 2011, the Family Court of Australia made consent parenting orders and on 31 May 2011 made consent property settlement and child support departure orders. These orders apparently determined proceedings between the parents then pending before that court. The child support departure order was in effect without prejudice to the pending objection by the applicant to the CSA.
On 8 June 2011, the CSA wrote to the applicant noting he had advised the CSA in a phone call on 21 April 2011 that he would make no further payments of child support, and stating that as arrears of child support were then $7,360.32 and no voluntary payments had been received from the applicant since 18 April 2011, the CSA would “now be pursuing alternative avenues for collection”. The applicant said he did not receive this letter until 14 July 2011.
There is no evidence that the applicant has voluntarily made any payments of child support since 18 April 2011.
On 10 June 2011, the applicant’s tax refund of $581.80 was intercepted by the CSA and applied in reduction of the applicant’s child support debt.
On 8 July 2011, the CSA issued a notice pursuant to s.72A of the Registration Act attaching funds of the applicant held by Westpac Bank to satisfy a child support debt stated in the notice to be $7,360.32. A copy of the notice was sent to the applicant.
The CSA decided the applicant’s objection in July 2011 (the objection decision). The objection decision is dated 18 July 2011, but the letter forwarding it to the applicant is dated 15 July 2011. His objection was disallowed.
By letter dated 21 July 2011, the applicant applied to the SSAT to review the objection decision.
On 26 July 2011, the sum of $364.73 was credited to the applicant’s account with the CSA, described by the CSA as “Child support debt offset”, followed by the mother's name in parenthesis. This apparently relates to a child support debt owed to the father by the mother from late 2009 which the father had been pursuing with the CSA for a considerable period.
On 27 July 2011, $490 was credited to the applicant’s account with the CSA, being funds of the applicant remitted by Westpac Bank pursuant to the s.72A notice. The applicant contends that in fact $500 was removed from his bank account. When he raised this with the CSA, the CSA referred the father to the bank, with a suggestion the bank may have charged the father a fee for taking his money out of his account and paying it to the CSA pursuant to the s.72A notice.
By various letters to the CSA dated 6 September and 16 September 2011, the applicant sought credit for various payments he said he had made for or on behalf of the children. The applicant said these payments totalled $3,085.34. There is no evidence that his request to have these sums credited has been determined by the CSA.
By letter dated 7 September 2011 responding to a letter from the applicant, the CSA inter alia indicated that “if we do not receive the monthly liability, we will request the Non Compliance team to follow up on collection of your ongoing liability and the arrears amount of $8,259.33”.
A pre-hearing conference was held by the SSAT in relation to the applicant’s review application on 15 September 2011, and on
19 September 2011 the SSAT issued directions to the parties and listed the applicant’s review application for hearing on 13 December 2011.
On 29 September 2011, the applicant said that in a phone conversation with the Case Manager at the CSA, he was advised that the CSA intended to take further recovery action in the absence of the applicant obtaining a stay order preventing the CSA from taking such action.
On 30 September 2011, the applicant signed his substantive application and an affidavit and financial statement in support and presented them that day to the Registry for filing, seeking inter alia that “the matter be heard at short notice”.
Discussion
As Altobelli FM said in Zeller (at [18] and [19]):
“18 As a general proposition, the circumstances when a Registrar may abridge time include applications involving:
(a) orders to protect a child and/or a parent from immediate physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence;
(b) orders to prevent the abduction of children or the removal of children from the jurisdiction of the Court;
(c) recovery orders;
(d) urgent orders arising out of unilateral action for the relocation of a child which will prevent the applicant continuing the relationship they had with the child prior to the unilateral decision of the other parent to relocate with the child;
(e) orders to prevent the irreparable destruction, injury, disposition, sale, encumbrance, dissipation, concealment or diminution in value of property or an interest in property or financial resource.
19. Registrars will no doubt have regard to whether the affidavits in support of the application disclose the relevant grounds, and the nature and immediacy of the damage or harm sought to be prevented. Any delays in filing must be clearly considered as well as the availability of alternative remedies for the applicant. In children’s cases the focus must be on their best interests rather than on the distress of the applicant. Registrars need to be alive to the possibility that applicants may seek to exaggerate their case in order to obtain an earlier hearing date.”
To the situations listed in [18], which principally relate to this Court’s family law jurisdiction, in my view may be added any case in which delay may result in the very thing the applicant is seeking to forestall, or the loss or significant impairment of the very thing the applicant is seeking to achieve, by his or her substantive application, thus risking either the loss of the remedy sought to be pursued, or the rendering of its enforcement significantly more difficult.
The applicant was on notice from at least 14 July 2011 that the CSA intended “pursuing alternative avenues for collection”, and examples of “alternative avenues for collection” were in fact employed by the CSA to the applicant’s knowledge in June and July 2011, over two months before the applicant first approached the court with his substantive application.
That delay is relevant to a consideration whether the substantive application should now be given urgent attention by the Court. The Court must be cognisant not only of the case in which urgent listing is sought, but also of the many other cases a busy Court such as this must attempt to deal with in as timely a fashion as is possible with available judicial resources, and of the impact on its ability to do so by interposing urgent matters over the top of matters that have already waited some time for attention.
Thus, the applicant’s complaint that justice delayed is justice denied applies as equally to all the other cases impacted by any interposition ahead of them of his case as a priority urgent matter.
However, while the delay from July to 30 September is not explicitly explained, the applicant was explicitly warned by the CSA on
29 September 2011, the day before he presented his substantive application for filing, that unless he obtained a stay, the CSA would take further enforcement action.
It is not for me, or a Registrar considering an application to abridge the time for service and for urgent listing, to pre-judge applicant’s substantive application. In my view the substantive application should be listed urgently if the Registrar (or the Court on review) is satisfied that-
a)the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
b)the applicant has demonstrated that absent an urgent listing the applicant will be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the Court’s attention in the normal course;
c)the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the Court; and
d)a judicial officer is available to hear the substantive application.
I am satisfied in this case that-
a)There are proceedings pending before the SSAT concerning the quantum of child support which, if successful, would significantly affect the current arrears of child support;
b)Without in any way suggesting I have formed a view as to the applicant’s prospects of success in the SSAT proceedings, I am nonetheless satisfied that the applicant has a reasonably arguable case to put to the SSAT to have the child support assessments reduced;
c)The applicant has been aware since June 2011 that the CSA may take unilateral action to recover arrears of child support by proceeding against his property and assets, but did not approach the court to seek to stay recovery action until 30 September 2011, at least three months later;
d)However, further recovery action against the applicant by the CSA was foreshadowed one day before he presented his stay application for filing, the CSA having then indicated the recovery action would be taken unless the applicant obtained a stay order;
e)If the matter is not listed urgently, the applicant’s stay application may be rendered nugatory be enforcement action by the CSA.
In those circumstances, I am satisfied that the applicant’s substantive application should have been, and now should be, listed with some urgency.
On reviewing a Registrar’s exercise of a delegated power under s.104(2), the Court “may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised” (s.104(3)).
I was therefore satisfied that the orders previously set out should be made.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate:
Date: 18th October 2011
23
6
6