N and A - [2005] FMCAfam 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & A

[2005] FMCAfam 343

FAMILY LAW – Contravention – whether order not to apply for family benefit and for wife to have whole of benefit breached – whether order an order for additional child support – whether reasonable excuse shown – whether belief that family assistance legislation prevailed over family court order reasonable.

Family Law Act 1975
Child Support (Assessment) Act 1989
Family Assistance Administration Act 1999

Applicant:

Respondent:

File Number:

MLM 2749 of 2005

Judgment of:

Phipps FM

Hearing date:

16 May 2005

Date of Last Submission:

16 May 2005

Delivered at:

Melbourne

Delivered on:

16 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr T.J. Puckey

Solicitors for the Applicant:

Dawes & Vary Pty

Mr A.T. Allen appeared on his own behalf

ORDERS

THAT the respondent be fined the sum of $1.00.
THAT the respondent forthwith withdraw his application to Centrelink for family payment in respect of the child W born 10 January 1994 and not make any further application.
THAT the respondent forthwith pay to the applicant an amount equal to the amount he has received from Centrelink in respect of the child.
THAT the respondent pay the applicant’s costs fixed at $2,162.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 2749 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

This is a contravention application in which it is alleged that the respondent father has breached provisions of an order made by the Family Court of Australia at Albury on 30 November 2000. That order was in respect of the child of the parties, W who was born on

10 January 1994.
Orders were made for the residence arrangements for W which provided for a shared care arrangement which meant that he was spending, it seems, about 55 per cent of his time with the mother and 45 per cent with the father; so slightly longer with the mother. The orders set out residence arrangements in a three-week cycle and then dealt with holidays, birthdays, Father's Day and other special days. Paragraph 7 of that order provided as follows:
(a)That the parties shall sign all documents and do all acts and things to ensure that the mother retains full payment from Centrelink;
(b) that the father be and is restrained from making any application to Centrelink for any part of the family payment;
(c) in the event of Centrelink dividing the family payment the father shall refund to the mother any family payment received from him.
The contravention which is alleged is that on 30 June 2004, the respondent father lodged a claim with Centrelink for a division of the family tax benefit and that he has not paid to the applicant mother any of his proceeds of the family tax benefit.
The mother is represented and the father acts for himself. The father, when asked if he admitted or denied that allegation said he admitted it, but he claims a reasonable excuse. The mother's evidence in support of the application is an affidavit filed by her on 17 March 2005. The application was filed on 22 March 2005.
The father admits that he made an application to Centrelink for family tax benefit and that he has received payment of some $1,500.00. That was a re-assessment back to the 2001-2002 financial year. The mother is required to repay the amounts which were paid to her considered to be in excess of that amount. The mother applied for review of the decision first within the internal processes within Centrelink to an authorised review officer who concluded that the decision was correct; that is, that the mother was entitled to only 55 per cent. She then applied to the Social Security Appeals Tribunal which affirmed that decision on 24 January 2005.
The tribunal's decision and reasons for decision are annexed to the mother's affidavit and in summary what the tribunal said, so far as the order of the Family Court is concerned are set out in paragraphs 26, 27 and 28 of the tribunal's reasons:
(26)Entitlement to social security payments is determined on the basis of social security legislation; in this case the legislation referred to above. The legislation provides that payment is made on the basis of percentage of care, which in this case is determined by the court orders. Consequently, the terms of the consent order do not override the social security legislation.
(27)Mrs N indicated to the tribunal that she believes that her rights had been breached. This may or may not be the case. However, Mrs Nn will need to pursue this by investigating her rights under the consent orders.
(28)The tribunal therefore concludes that a family tax benefit was payable to Mrs N at the rate of 55 per cent during the period in question.
Consequently, it affirmed the decision that she had been overpaid, that that should be repaid, and also affirmed the decision that the father should be receiving the payment in accordance with a finding that he had care of the child for 45 per cent of the time.
The father's defence is that he, having applied to Centrelink, having had his application, he said in his evidence, referred to Canberra, the decision having been made and affirmed through the review processes, that the social security legislation overrides the Family Court order and that he is entitled to payment. On his evidence, the evidence was that there has been shared care of the child since he was very young and he also referred to the fact that he drives for 160 minutes each day when the child is with him to take the child from his residence in Shepparton to school in Kyabram; so that he does a return trip twice a day, 40 minutes each way.
The submission which Mr Puckey put for the applicant was that paragraph 7 of the order made on 30 November 2000 was an order for child support made pursuant to the provision of the Child Support (Assessment) Act1989 (Cth). Section 123 of that act provides for application to be made to a court for an order that a liable parent provide child support for a child otherwise in the form of periodic amounts paid to the carer entitled to child support. Under s.124 where a court is satisfied of the matters referred to under that section may make an order of the type contemplated by s.123. Section 126 provides for reasons to be given, but sub-s.(2) of that section does not require reasons if the order is made by consent. In any event, sub-s.(3) says that a contravention of sub-s.(1), that is, the requirement to give orders does not affect the validity of the order. Section 100 of the act provides for contravention applications and enforcement of decrees by using the provisions of Part 13 of the Family Law Act1975 (Cth). The application before the court is under Part 13.
Part 13 of the Family Law Act sets out the meaning of "contravention"; where a person has intentionally failed to comply with the order or made no reasonable attempt to comply. A person may have a reasonable excuse. That is defined in sub-s.112AC(2); a person is taken to have had a reasonable excuse if the respondent contravened the order because, or substantially because, he or she did not at the time of the contravention understand the obligations imposed by the order on the person who was bound by it.
The father has not complied with the order. He admits to applying to Centrelink and he admits to receiving the family payments. That is a breach of paragraph 7. The reasonable excuse that he relies upon is that he has come to the conclusion, because of advice that he was given by Centrelink, that the family assistance legislation overrides the order of the court. I am satisfied that he does honestly hold that belief, but it is a question of whether that satisfies the requirements for reasonable excuse under sub-s.112AC(2).
The paragraph (a) requirement is that the respondent did not understand the obligations imposed by the order. I do not see that as the situation here. The obligation imposed by the order was not to make application to Centrelink, and secondly, if the benefit was divided, to refund the mother any payment which was received by him.
What the father has done is to take a view that advice given to him by Centrelink in a decision by the Social Security Tribunal could override that obligation. But that is not a misunderstanding of the obligations. In any event, even if it was, the second requirement under sub-s.(2) is that the court be satisfied that the respondent ought to be excused in respect of the contravention. I am not satisfied that he ought to be. He has made his own interpretation of what he has been told by Centrelink, and in particular, what appears in the decision of the Social Security Tribunal. I do not believe he was reasonable in doing that.
Paragraph 27 of the reasons of the tribunal, which I have referred to, make it clear the basis on which the tribunal is reaching its decision so far as the Family Court order is concerned. It says that the mother indicated to the tribunal that she believed her rights had been breached. The tribunal said this may or may not be the case, however, it said that the applicant mother would need to pursue this by investigating her rights under the consent orders. It is clear what the tribunal is saying; that it applies the relevant legislation in respect of family benefits, in that case, the Family Assistance Administration Act 1999. So far as the Family Law Act is concerned, that was a different matter. So I do not consider that the father has a reasonable excuse.
It then becomes a question of what should be done. Section 112AD(1) provides that if the court is satisfied that a person has without reasonable excuse contravened an order under this act, the court may make an order imposing one or more of the sanctions available under sub-s.(2). They include a bond, imprisonment, a fine or by reason of other provisions of the act and state legislation, something in the nature of a suspended sentence or a community service order. Subsection(4) provides:
Where a court makes an order under subsection (1) the court may make such orders as the court considers necessary to ensure compliance with the order that was contravened.
The real point of the application has been to determine the question in dispute; that is, whether the father is bound by paragraph 7. I can make orders under sub-s.(4) ordering that he comply with paragraph 7 of the Family Court order. That can only be done where there is an order made under sub-s.(1) that requires the imposition of a sanction.
One possibility is the imposition of a bond, but that might lead to further unnecessary proceedings in the event of there being non-compliance or even a dispute about compliance. That might lead to proceedings which allege that the father had not complied with the requirements of the bond or breached the requirements of the bond. That seems to me to be unnecessary. But there has to be some sanction imposed.
The appropriate way of proceeding I consider, is to impose a nominal fine of only $1.00, which in practical terms will never be paid, and to make orders for compliance.
I find the contravention alleged has been proved. The respondent is fined $1.00 and orders will be made that require the respondent to comply with the order breached.
An application has been made that the respondent pay the applicant's costs. Costs are dealt with under s.117 of the Family Law Act 1975. Subsection(1) provides that subject to the following subsections each party to the proceedings is to bear his or her own costs. The court has a discretion to award costs and the matters to be taken into account are set out in sub-s.117(2A). The relevant matters here are the financial circumstances of each of the parties, the conduct of the parties to the proceedings, whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders and whether any party to the proceedings has been wholly unsuccessful in the proceedings.
The financial circumstances are that each party has a modest income. Neither party is in receipt of legal aid. The father's only income has been $14,000.00 for three months seasonal work with SPC Ardmona in Shepparton. He said in his evidence that he has closed the business which he had of repairing washing machines and dryers and the like because of the three hours a day or thereabouts which he spends driving for the purpose of taking the child backwards and forwards to school. He said he simply could not maintain his business. But he owns some property and he has a small amount of money in the bank.
So far as conduct in relation to the proceedings, the father has represented himself and has not obtained advice which may have persuaded him that he should not have attempted to defend these proceedings. The proceedings have been necessitated by the failure of the respondent father to comply with the previous order and he has been wholly unsuccessful.
All of those considerations lead to a conclusion that there should be an order that the respondent pay the applicant's costs. The appropriate amounts from schedule 1 of the Federal Magistrates Court rules are the amount for a summary proceeding, $1135.00 plus a hearing fee of a half-day with advocacy loading. Those two amounts of $1,135.00 and $1027.50; a total of $2,162.50.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: