Patterson and Patterson and Anor
[2016] FCCA 1555
•28 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATTERSON & PATTERSON & ANOR | [2016] FCCA 1555 |
| Catchwords: FAMILY LAW – Child Support – Application for Declaration – summary dismissal – application for summary dismissal. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.98S, 115 Child Support (Registration and Collection) Act 1988 (Cth), ss.71, 104, 111B, 116 Federal Circuit Court of Australia Act 1999 (Cth), ss.10, 17A, 18 |
| Cases cited: Bagala & Bagala [2009] FMCAfam 953 |
| Applicant: | MR PATTERSON |
| First Respondent: | MS PATTERSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 7687 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 14 July 2015 |
| Date of Last Submission: | 14 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Grant (direct brief) |
| Solicitor for the First Respondent: | Ms Cole |
| Solicitors for the First Respondent: | Legal Aid NSW |
| Solicitor for the Second Respondent: | Ms Schuster |
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
The Response filed on 4 May 2015 is dismissed.
The matter is transferred to the docket of the Judge Henderson for further directions on 12 August 2016 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Patterson & Patterson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7687 of 2013
| MR PATTERSON |
Applicant
And
| MS PATTERSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application In a Case brought by the Husband seeking the following orders:
a)A declaration that the total amount by Mr Patterson to Ms Patterson in child support liability for X is nil.
b)An order that the Child Support Registrar amend the particulars in the child support register accordingly within 14 days.
c)Such further or other orders as to this honourable court may seem fit.
d)An order that the Child Support Registrar and Ms Patterson pay Mr Patterson’s costs of this application.
The application is supported by two affidavits made by the Applicant, one on 31st March 2014 and the second on 1st April 2015. The Application in a Case which is filed on 1st April 2015 was superseded by an Amended Application in a Case which was filed in Court on 14th July 2015. The later Application joined the Child Support Registrar as a party.
Background
The background to this particular matter is that there were proceedings in this Court originally commenced by way of an Application in a Case filed on 23rd December 2013 by the Applicant Wife and that Application sought payment of arrears of child support of $4,041.39 and a variety of ancillary orders. That Application was supported by an affidavit of the Applicant Wife sworn on 23rd December 2015 and an affidavit sworn by her solicitor of that same date.
The Husband filed a Response on 31st March 2014 supported by an affidavit in which he sought orders that the total amount owing in child support was nil and sought a dismissal of the Application in a Case. He accompanied those documents with a Financial Statement. What then happened was that the proceedings were in fact resolved on 15th April 2014 by means of Consent Orders. It is those Consent Orders that have formed the basis of the Husband’s Application in a Case.
The Consent Orders of 15th April 2014 contained a declaration that the total amount owing by the Respondent to the Applicant in child support liability for the child was nil. The Application in a Case of 23rd December was dismissed. There was no order for costs. The Court noted that the Respondent was currently paying child support for the child at the rate of $49.50 per calendar month.
That would ideally have resolved the matter on a permanent basis except that it transpired that the Consent Orders were entered into after the mother, the payee, had received certain advice from the Child Support Registrar as to the amount of arrears outstanding being nil. That turned out to be incorrect and advice was subsequently received that an amount of $717.01 was owing, together with $45.88 for late payment penalties and the mother then sought to recover that.
The Father then brought his Application and his amended Application in a Case that the child support payments should be declared at nil claiming that the parties had compromised the proceedings and that they were bound by that compromise. The fact that there had been an error by the Child Support Registrar upon which the Mother had relied was it was submitted, irrelevant to the case in that the matter had been appropriately and properly compromised by the parties with the assistance of their legal representatives. That then formed the basis for the subsequent proceedings before this court.
Submissions
Each party filed written submissions and the Court heard oral submissions from the parties’ legal representatives. The Father by his outline of submissions filed in Court on 14th July 2015 sought leave to file in court an Amended Application in a Case formally joining the Child Support Registrar as the Second Respondent but still seeking the same orders. It was submitted that the relevant facts were that the Father had at all times complied with the Court’s directions and that when the matter was back before the Court on 15th April 2014 proceedings were settled on that day.
The Mother’s then legal representative from Legal Aid had proposed certain orders dismissing the proceedings and by consent the Court subsequently made a declaration, orders and notation in accordance with the parties’ agreement. Among other things by consent the Father’s arrears were declared to be nil. On or about 2nd May 2014, the Mother’s legal representative gave notice of the Court’s orders to the Child Support Registrar.
On 10th January 2015 the parties’ child, their daughter, for whose support the child support payments were made turned 18 and the Father’s liability for child support for her ended the day before on 9th January 2015. It was submitted that between 15th April 2014 and 9th January 2015, the Father paid all of his monthly child support payments. Neither the Mother nor the Child Support Registrar had ever claimed otherwise.
However, the submission is that the Child Support Registrar refused to obey the Court orders of 15th April 2014 to amend the particulars in the child support register to show the Father’s arrears as at nil. They, in fact, remained showing as as at that date as either $1116.58 or $1016.58 as per the affidavit of Ms S of 10th July 2015. This continued despite the Father’s requests by letters in August, September and November 2014.
However, it transpired that on 25th November 2014 the Child Support Registrar disclosed for the first time that it had provided incorrect information to the Mother’s lawyer about the question of child support arrears. It emerged the first time in May 2015 that in June 2014 the Child Support Registrar had admitted this error to the Mother and had referred it to the Department’s compensation team.
Despite this on 2nd March 2015, the Mother demanded payment of alleged arrears of $717.01 and foreshadowed further enforcement proceedings in this court. It is submitted that the Court has both jurisdiction and power to determine the application. Jurisdiction is conferred on the Court in relation to matters arising under the Act by subsection 104(1) of the Child Support (Registration and Collection) Act 1988 (Cth). This is in addition to any jurisdiction conferred on or invested in the Court apart from the section under subsection 104(9) of the Act.
The Court’s powers under the Child Support (Registration and Collection) Act 1988 include the power to do or order any of the matters listed in subsection 111B(1). They include the power to make any other order whether or not of the same kind as those referred to in subsections 111B(1) paragraphs (a) to (k) that the Court considers appropriate. They also include the power to make an order varying an order in any way.
This, it is submitted, is reflected in the powers conferred by rule 25B(13) of the Federal Circuit Court Rules 2001, including the power to make an order declaring the total amount owing under any obligation. It’s further submitted that the Court has jurisdiction and power under its own Act including the original jurisdiction vested by laws made by the parliament. It also includes the jurisdiction conferred in respect of matters associated with its jurisdiction and the Court is referred to the provisions of sections 10 and 18 of the Federal Circuit Court of Australia Act 1999 (Cth).
Further, it includes power in relation to matters in which it has jurisdiction to make orders of such kinds including interlocutory orders as the court thinks appropriate under section 15 and to grant declaratory relief under section 16. Accordingly, rule 25B(13) of the Rules is not the only source of the Court’s jurisdictional power. Indeed, the rule appears to be based on the power conferred by section 111B.
The Father submits that the Application arises from the failure of the Child Support Registrar to implement the Court orders of 15 April 2014. There is no dispute that the orders were duly and legitimately made under the jurisdiction and power conferred by the Child Support (Registration and Collection) Act 1988, the Application therefore by the Father in relation to matters arising under the Act and the Court has jurisdiction under subsection 104(1) and sections 10 and 18 of the Federal Circuit Court of Australia Act 1999 (Cth). It also has power under subsection 111 B, paragraphs (1) and (14) and rule 16.05(2)(c) does not affect the Court’s power to vary an order by a further order.
Even assuming that the powers conferred by rule 25B(13), willingness to facilitate enforcement orders it does not of course follow that the Court does not have the jurisdiction and power to consider the Father’s application. It was submitted that the Mother’s submissions about the child support assessment were not to the point. The basis of the Father’s application is a simple mathematical one and is based on what effectively was a running account of the Father with the Child Support Registrar.
The Registrar and the Mother claim that the final balance is $762.89, comprising the debt of $717.01 plus penalties of $45.88. If the Registrar had complied with the Court orders of that date, the Father would have received a credit in respect of arrears that were shown of $1016.58. Thus, there would not now be a debt of $717.01. The child support assessments made before and after 15th April 2014 are not in dispute, nor is there any issue that there was no departure application under section 115 of the Child Support (Assessment) Act 1989 (Cth).
The decisions of the Court in Bagala & Bagala[1] and Moore & Moore[2] are not to the point. The relevant legislative scheme it is submitted is not that concerning departure applications but that concerning enforcement proceedings brought by a payee. Any application arising from the Child Support Registrar’s failure to obey the Court’s orders is properly a judicial matter and not an administrative matter.
[1] [2009] FMCAfam 953
[2] [2012] FMCAfam
The Respondent Mother seeks summary dismissal under section 17A of the Federal Circuit Court of Australia 1999, in particular, subsection (2). What is submitted, however, by Mr Grant of Counsel for the Father, is that the Father’s submissions are at least seriously arguable and the Court cannot be satisfied that the father has no reasonable prospect of successfully prosecuting them. On any practical judgment, the Father has more than a fanciful prospect of success and the Court is referred to the decision of the High Court of Australia in Spencer v Commonwealth[3] at [25] in the judgment of French CJ and Gummow J.
[3] (2010) 241 CLR 118
The Court should only exercise its power of summary dismissal under section 17A if and only if the Court is satisfied there is no reasonable prospect of success. The power to dismiss an action summarily is not to be exercised lightly. The Court is also referred to the decision of Judge Cassidy in Redmond & Stroltz & Anor (SSAT Appeal)[4] at [13].
[4] [2015] FCCA 252
Whilst the Mother’s application for summary dismissal of the Application in a Case is the matter for decision, it is submitted on behalf of the Applicant Father that his Application should not be summarily dismissed and that the Mother’s Response to an Application in a Case seeking summary dismissal should of itself be dismissed. The Mother as I said relies on the affidavit of Ms S to which I have previously been referred. It is submitted on behalf of the Mother that under the general enforcement powers of the Court in r.25B(13) of the Federal Circuit Court Rules, the Court may make an order declaring the total amount owing under an obligation.
Further, it is submitted from the evidence that the Orders were made by the Court on 15th April 2014, were made on the basis of information obtained from the Child Support Registrar shortly before the court date. The powers listed in Rule 25B(13) are limited to facilitating enforcement orders and do not permit or contemplate a change to the child support assessment or any other adjustment of the child support liability owed to the Child Support Registrar.
It was submitted that there is no application for departure from the child support assessment that was before the Court during the course of the enforcement proceedings and it was noted that in any event, the child support legislation sets out a legislative scheme whereby departure matters should be determined administratively. The court is referred to the decisions of Bagala & Bagala[5] and Moore & Moore[6] .
[5] supra
[6] supra
It was further submitted by Ms Cole, the solicitor for the First Respondent that since the orders were made on 15th April 2014, the parties had availed themselves of the options under the administrative scheme and the Child Support Registrar had made a number of decisions in the last 12 months including a departure from the assessment under section 98S of the Child Support (Assessment) Act 1989 and a decision about the crediting of non-agency payments under section 71 of the Child Support (Registration and Collection) Act. As a consequence of those decisions, there have been a number of changes to the Applicant’s liability since 15th April 2014.
It was further submitted that subsection 116(2) of the Child Support (Registration and Collection) Act states that a certificate of debt issued by the Child Support Registrar is prima facie evidence of the debt owed. A certificate under subsection 116(2) issued by the Registrar was annexed to the Mother’s affidavit which indicates that there was a debt of $717.01 as at 23rd April 2015. It was submitted for the First Respondent that the Court does not have the jurisdiction to make the orders that the Applicant is seeking.
The First Respondent seeks that the Application should be summarily dismissed under section 17A of the Federal Circuit Court of Australia Act on the basis that there are no reasonable prospects of success and, indeed, relies on the decision of Redmond & Stroltz (SSAT Appeal).
Consideration
I have considered these submissions. In oral submissions before the court, it was submitted by Mr Grant of counsel that the Applicant has an arguable case. He has more than a fanciful prospect of success. The Consent Orders of 5th April 2014 represented a compromise of the case as it was before the Court and a compromise entered into by the parties when they were legally represented. The Court had the power to make those orders.
True it is that a certificate under subsection 116(2) of the Child Support (Registration and Collection) Act is prima facie evidence of a child support debt it is prima facie evidence and only that. It is not conclusive. It does appear that there was an error on the part of the Child Support Registrar when advice was given to the Mother’s solicitor before the Consent Orders were entered into but that does not of itself invalidate the orders made by this Court.
The Father’s claim that the Child Support Registrar did not comply with a term of the consent orders declaring the child support debt at nil and continued not to comply with that order is an argument that has some force. This is not a case where it would be proper to make an order for summary dismissal of the Applicant’s claim.
The Response filed on 4 May 2015 will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 28 June 2016
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