Paxton and Child Support Registrar and Anor
[2012] FMCAfam 1181
•4 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAXTON & CHILD SUPPORT REGISTRAR & ANOR | [2012] FMCAfam 1181 |
| CHILD SUPPORT – Application to extend time to file Notice of Appeal from decision of SSAT – determination of merits of proposed appeal on full argument by the parties in determining extension of time application – no merit in proposed appeal – extension of time refused. |
| Child Support (Registration and Collection) Act 1988, ss.4(1), 18A, 25, 25C, 110B, 110K Family Law Act 1975, ss.104(7), 117 Judiciary Act 1903, s.78B |
| Kuswardana v Minister for Immigration and Ethnic Affairs, [1981] FCA 66, (1981) 54 FLR 335 Luton v Lessels, [2002] HCA 13, (2002) 28 Fam LR 398 |
| Applicant: | MR PAXTON |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS LAFFERTY |
| File Number: | PAC 6065 of 2011 |
| Judgment of: | Halligan FM |
| Hearing date: | 4 October 2012 |
| Date of Last Submission: | 4 October 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 4 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | In Person |
ORDERS
The father's application to extend time in which to appeal from the decision of the SSAT made on 29 August 2011 is dismissed.
The Notice of Appeal filed on 29 December 2011 is dismissed.
The costs application of the Child Support Registrar is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Paxton & Child Support Registrar & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6065 of 2011
| MR PAXTON |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS LAFFERTY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is the hearing of an application for an extension of time in which to bring a notice of appeal from a decision of the Social Security Appeals Tribunal in a child support matter, and if that application is successful, for the hearing of the appeal.
Background
The parties are the applicant father, the first respondent Child Support Registrar (the Registrar) and the second respondent mother. With the consent of the parties, I have proceeded to first hear fully on its merits the father’s appeal, on the basis that if I was not satisfied there was any merit to the appeal, then his application to extend time would be dismissed and that would be the end of the matter. If I was satisfied that there was merit in the appeal and that, subject to an extension of time being granted, it should be allowed, I would then turn to the remaining issues of discretion in relation to whether or not to extend time.
The particular decision under challenge by the father is a decision by the Social Security Appeals Tribunal made on 29 August 2011, the reasons for which were dispatched on 6 September 2011. The father’s application and appeal were lodged on 29 December 2011. There is no evidence before me to clearly indicate when the reasons were received by the father, and it is from the receipt of those reasons that the time for his appeal runs.
Be that as it may, the particular decision was to reject the father’s application to review the decision of an objections officer and to affirm that decision. The decision of the objections officer, in turn, was to reject an objection by the father to a decision by the Registrar to register, under the Child Support (Registration and Collection) Act 1988 (the Registration Act), a registrable overseas maintenance liability. That liability was based upon an order of the California Superior Court of 25 February 2008, determining arrears of maintenance payable by the father. Subsequently, there was a certificate of arrears, and it was subsequent to receipt of the certificate of arrears that the Registrar effected the registration. It is that registration which the father challenges.
The parties, relevantly, have one child, [X], who is now 21. The matter has some significant history, it seems, both through the Australian Child Support Agency and through the Californian courts. Most of that history is irrelevant. Relevantly for matters that the father seeks to raise in his appeal, however, is that in 2005, the Registrar registered an order of the Los Angeles Superior Court made in 2004 for the father to pay child support and spouse maintenance.
The spouse maintenance component was split in two, in effect, part being payable periodically to the mother and the remainder being attributed to a travel fund for the father to travel to spend time with [X] in the United States. The order provided, as I understand it, that on 30 January each year, the father was to account for the amount attributable to travel costs from the travel fund, and any unspent portion was payable to the mother.
On 18 September 2006, the Child Support Agency determined that the father was not a resident of Australia for the purposes of the Registration Act. The next day, the Child Support Registrar ended the case. The case, at that stage, seems to have been based upon the registered Los Angeles order from 2004.
On 18 March 2008, the Registrar determined that the father was then a resident of Australia under the Registration Act. On 20 November 2009, the Registrar received a request from or through what is described as the California Central Authority, being the Los Angeles County Child Support Services Department, to register arrears under an order made by the Los Angeles Superior Court on 25 February 2008. On 22 June 2010, the father wrote to the agency disputing liability. On 9 July 2010, the agency received a statement of arrears from the California Central Authority, stipulating arrears at US$20,159.58 as at 1 July 2010. This sum was converted to Australian Dollars, $22,173.52 on the telegraphic transfer exchange rate as at 4 July 2010. On 17 August 2010, the Registrar registered the US order of 25 February 2008 as a registrable overseas maintenance liability.
The father had written, not only on 22 June 2010, but also on
29 July 2010, to the Child Support Agency about the pending action concerning the US order. On 10 September 2010, the Registrar decided to treat those two letters as an objection to the registration of the US order as an overseas registrable maintenance liability. The father also wrote a third letter to the agency on 16 September 2010. The objections officer’s decision rejecting or disallowing the objection was made on 8 April 2011. The father applied for review of that decision to the SSAT on 9 May 2011. The hearing before the tribunal was on 1 August 2011, and as I have said, the tribunal’s decision was made on 29 August 2011 and dispatched on 6 September 2011.
Both the objections officer and the tribunal identified the issue for determination as being whether or not the Registrar should have registered the Los Angeles order of 25 February 2008. There is no issue – and this is recorded accurately, in my view, by the tribunal – that the order was made by the Los Angeles Superior Court on
25 February 2008.
The bases for the proposed appeal
The father has attempted to conduct his matter without legal representation. I have therefore sought to give him opportunity to identify the bases upon which he brings his appeal, emphasising at all points that there is only one basis upon which he can appeal, and that is on a question of law. That is so because of section 110B of the Registration Act. This Court cannot review on its merits the decision of the tribunal. This Court cannot consider whether or not the tribunal’s decision was right or wrong based upon objections concerning facts. It can only consider whether or not the decision that the tribunal took was infected by error on a question of law.
I will deal with each contention by the father in the order in which the father articulated his objections.
First, the contended that the Californian order of 2008 was not registrable under section 25C of the Registration Act because neither party was resident in Australia. Section 25C of the Registration Act provides:
“Despite anything else in this Division, the Registrar must not register a liability if neither the payee nor the payer is a resident of Australia.”
The father’s contention is that he has, at all times, been a resident of Australia, and in fact, the Registrar’s decision, taken in 2006, that he was not, was wrong. In fact, the father described it as illegal without ever identifying any aspect of illegality.
There is thus simply no basis for the father’s contention. It is a matter of fact, not law, whether or not he is resident in Australia. The issue is not whether he was resident in Australia at the time of the Registrar’s decision in 2006. The question is whether or not he was resident in Australia at the time the overseas maintenance liability was registered, and that is clearly much later. Before the registration was effected, the Registrar had determined that the father was resident of Australia. That is a concept which is defined in the Registration Act by reference to the Income Tax (Assessment) Act 1936. I need not go further in relation to that, in light of the father’s contention that, at all times, he was resident in Australia. Even if this could be a question of law - and I am not satisfied it can be - there is clearly no merit to it at all.
The father further suggested, although at first he was unsure of it, that he had challenged the decision by the Registrar made in September 2006 that he was not an Australian resident. He took me to various documents, ultimately put to the Registrar at about the time of his objection, as I understand it, that he suggested constituted an objection to that decision. I am not satisfied that any of these documents could be taken to be such an objection. In any event, as I say, by the time of registration, the Registrar had determined the father’s status consistent with what he says it should have been.
The father also sought to suggest that, in effect – and I will take it to be something in the nature of a submission of some sort of estoppel – that because one of the bases suggested in the US court order for the court proceeding in determining the arrears was the Registrar’s decision in 2006 that the father was not resident of Australia, that therefore, he cannot, under Australian law, subsequently be treated as a resident of Australia.
He did not articulate it in quite those terms, but bearing in mind he is not legally represented, I have an obligation to do my best to understand what bases may lie behind his submissions without, at any point, in fact, becoming his advocate.
I am not satisfied, if that is in fact what he was seeking to suggest, that there is any merit in that suggestion. As I say, the matter here is for determination under Australian law. And in any event, the reference to the Registrar’s determination in 2006 is not the only basis referred to in the US order for that court proceeding to make the order it did.
The father further sought to describe the Registrar’s decision as illegal - and I take it to be the 2006 decision - because of section 104(7)(a)(ii) of the Family Law Act 1975. He mentioned and relied upon this section otherwise in relation to his objection to the appeal. Section 104(7)(ii) of the Family Law Act provides:
“For the purposes of this section a court in Australia in considering the validity of a divorce or an annulment of a marriage or a legal separation of the parties to a marriage effected under a law of an overseas jurisdiction –
(a)where the respondent appeared in the proceedings for the divorce, annulment or separation-
(ii) may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; …”
With respect the father has totally miscomprehended the purpose of this section. It has narrow application. It applies only firstly, for the purposes of section 104 of the Family Law Act. It does not apply to the Registration Act. Secondly, it only applies to a court and neither the Registrar nor the SSAT are a court, which he conceded. Further, it only relates to a decision concerning the validity of a divorce or an annulment of a marriage. The 2008 order was neither. This section simply is irrelevant and has no application at all.
The father sought to suggest that the section applied to the SSAT because it applies to courts and anything that applies to a court should apply to the executive branch of government. That is simply nonsense with all due respect. That is not what the section says and it is not its operation.
The father further sought to suggest that the divorce order and the maintenance order were not severable because he said they were originally made as one and the same court pronouncement or decree or order in 2006. He further sought to suggest that it was only the 2006 order and not the 2008 order that was enforceable, but it is the 2008 order that is registered and it is that order that I am concerned with, not the 2006 order. There is no merit in this submission.
The father also raised the issue of the absence of a certificate of enforceability for the 2008 order. There was a certificate as to enforceability of the 2006 order. When I sought to clarify with him whether it was his submission that absent a certificate of enforceability it was not open to the Registrar to register any overseas maintenance liability based on a court order, he said that was not his submission but rather this was a matter of discretion. As I understood it he was seeking to suggest that because he had impugned the enforceability of the US order made in 2008, the Registrar should not have registered it without first obtaining a certificate of enforceability.
I accept the father’s contention that this was a matter of discretion and not a mandatory requirement. I am satisfied that that discretion is one that arises under the section under which the registration decision was made and that section is section 25.
In s.25(1) the Registration Act provides that a payee of a registrable maintenance liability not yet registered under the Registration Act may apply to the Registrar for registration of the liability. A registrable maintenance liability is defined and it includes a registrable overseas maintenance liability (see ss.4(1) and 18A, Registration Act). There is no suggestion that the US order of 2008 was other than a registrable overseas maintenance liability within the meaning of the Registration Act, subject to a challenge to the bilateral agreement between Australia and the US for which purpose the section operated in this particular case. There was otherwise no suggestion that it was other than a registrable overseas maintenance liability.
Section 25(1A) of the Registration Act then deals explicitly with overseas maintenance liabilities that are registrable overseas maintenance liabilities and facilitates their registration if a request for registration is made by the payee through an overseas authority of the reciprocating jurisdiction or by the overseas authority on behalf of the payee. Relevantly, section 25(1A) provides that such an application “is taken to be an application under subsection (1) if the Registrar is satisfied that it is appropriate to do so”.
For it to be a registrable overseas maintenance liability, the particular liability must satisfy certain requirements of the Act (see s.18A, Registration Act). Once those requirements are satisfied, then clearly one has what s.25(1A) presupposes exists, a registrable overseas maintenance liability. Therefore the reference to a further discretion in the Registrar – “if the Registrar is satisfied that it is appropriate to do so” - contemplates something beyond merely being satisfied that there is a registrable overseas maintenance liability in relation to which there is a request by the payee through an overseas authority or by an overseas authority on behalf of the payee to have it registered.
I am satisfied that that discretion could extend to, for example, seeking to clarify the enforceability of the order if it’s validly is challenged. However, there is no requirement to do so.
The father asserted that he in fact had raised his concerns about enforceability, and the decision ultimately taken was that if he wished to challenge the enforceability or anything else about the 2008 order, his remedy lay with the US court, not with the Registrar or the SSAT.
I am satisfied that was a decision open to be taken by the tribunal as the father himself said it involved an exercise of discretion. It has not been suggested that there was any error on a question of law attending the exercise of that discretion and I am not satisfied this involves any error on a question of law.
The next point that the father raised was a contention that the arrears are wrong and if the arrears were wrong they should not be registered. He suggested this raised a question of law because it rested upon the fact that the Registrar altered his residency status. As mentioned this was a matter referred to in the US court order but it was not the only matter referred to. He contends that this was the basis of law on which the US court found that there were arrears.
I am not satisfied this is so, because on the face of the record that is simply not true. In the circumstances I am not satisfied that he has identified any error on a question of law at that point. And I have already indicated that I am not satisfied that the documents that the father took me to amount to an objection to the decision in 2006 that he was not an Australian resident.
Next the father submitted that the agreement between Australia and the United States under which this liability was transmitted by the US authority to Australia and was registered was invalid.
He conceded that this point was not raised before the tribunal. I am not satisfied that that means that he cannot raise it before this court. That in my view is established by comments of Bowen CJ of the Federal Court in the matter of Kuswardana v Minister for Immigration and Ethnic Affairs, [1981] FCA 66, (1981) 54 FLR 335. His Honour there indicated that in his opinion a party was not necessarily precluded by the conduct of their case before the tribunal from arguing on appeal even matters conceded before the tribunal. His Honour suggested that rather these would be matters of discretion if they were otherwise established.
The father tendered a copy of the agreement between Australia and the US. The bases upon which he contended it was invalid were, that a section of the United States code cited in the preamble to the agreement does not exist, that the agreement has not entered into law in the United States because it had not been ratified by the US Congress and it therefore cannot operate in Australia, and that it was entered into in bad faith by the US government and is therefore of no effect. He did not elaborate on any of these matters.
I am not satisfied that what he has put raises any concerns about the validity of this particular agreement. In any event it is not the agreement that I am concerned with. It is the operation of the Registration Act and the operation of the Registration Act is clear. I am not satisfied this raises any question of law affecting the decision of the tribunal.
He further put that the bilateral agreement does not exist in Californian law and it was not adhered to by the California Superior Court or by the Registrar. He also submitted that it was not valid because it was not incorporated fully into the Family Law Act, a submission which I took as extending to the Registration Act and the regulations made under it and the Family Law regulations.
There is no evidence put before me as to whether or not it exists in Californian law. It is not explained to me how whether or not it does exist in Californian law effects either the operation of the bilateral agreement or more importantly the operation of the Registration Act in this regard. Nor is it necessary for the agreement to be set out in any legislation or legislative instrument in Australia, unless the purpose of the legislation or legislative instrument is to textually incorporate the full terms of the agreement into Australian domestic law. That is not the case here, and it is not the case in relation to one of the matters that the father cited and relied upon to support his contention - the Hague Convention on International Child Abduction. Whilst that convention is in fact set out in a schedule to the Family Law (Child Abduction Convention) Regulations 1986, it is the regulations that operate as the law in Australia, not the convention set out in the schedule, and those regulations do not fully replicate all of the terms of the convention.
I am not satisfied there is any point of law raised on this submission.
The father next submitted that there was a constitutional issue of the separation of powers. He suggested that the decision of the Registrar to change his residence status to that of not being resident in Australia was a judicial one. He acknowledged Luton v Lessels, [2002] HCA 13, (2002) 28 Fam LR 398, but sought to rely upon certain passages from the judgment of Kirby J to suggest that the Registrar’s decision was a judicial one.
In my view, it is not a judicial decision, and that is authoritatively established by Luton v Lessels. This is trite law established by the High Court and the father has not demonstrated any basis upon which I could do otherwise than proceed upon the basis that Luton v Lessels states the law and I am bound by it.
Further, I accept the submissions on behalf of the Registrar that there is no arguable constitutional issue raised in this regard and it is not necessary in those circumstances for me to give notice to Commonwealth and State Attorneys General pursuant to s.78B of the Judiciary Act 1903 before proceeding to decide the issue.
In any event, in my view the decision concerning his status in 2006, as not being a resident of Australia, is not relevant to the decision that had to be taken, and was taken, to register the US maintenance obligation.
The father again returned to section 104(7)(a) on this point, and I have dealt with that already. As I have said, it is simply inapplicable.
The next point the father raised was that the Registrar had no power to make the decision on 18 March 2008 that he was a resident of Australia because there was a finding of fact of the US court that the father was a resident of the US. As I sought to explain to the father, these findings are not mutually exclusive. The finding by the Registrar was in accordance with Australian law. I must assume that the finding by the US court was in accordance with US law. There is no necessary inconsistency. A person may be resident in Australia for Australian tax purposes, and hence for the purposes of the Registration Act, whilst being a resident of a foreign country for the purposes of curial proceedings in the foreign jurisdiction. I am not satisfied any arguable point of law or question of law is raised by this submission.
The father sought to submit that he was denied procedural fairness by the SSAT. He said that this was for a variety of reasons. Without going through every one of them, they included because the tribunal said that it was for the US court to resolve the issues going behind the US court order to decide, rather than the tribunal. He suggested that because he said he was incorrectly advised by the tribunal as to the documents that would be forwarded to this court pursuant to s.110K of the Registration Act for his appeal after the tribunal had already finished its deliberations was a denial of natural justice or procedural fairness. He said it was such a denial because the other party was permitted to participate by phone and he said this denied him a proper opportunity to properly assess or test the credit of the mother. He said that a prior order was missing that should have been included with the papers and he then went on to make certain assertions of fact which are not relevant.
None of these matters raise issues concerning natural justice or procedural fairness. They simply are another way of saying that the father is dissatisfied with the result. It is a matter for the tribunal to determine its own procedure. I am not satisfied that there is any denial of natural justice or procedural fairness to one party, if the tribunal decided to permit the other party to participate by phone, as it did in this case, nor could there be any denial of natural justice or procedural fairness to the father by anything the tribunal did after it had concluded the determination of his application for review. There is simply no basis identified for suggesting any lack of procedural fairness or natural justice.
The father then sought to raise what he referred to as jurisdictional issues. However, I could not readily identify that what he then referred to in any way called into question the jurisdiction of the tribunal to entertain the application that he lodged with it. If it lacked jurisdiction, then presumably he would never have filed his application with it. Rather again I think the father was simply seeking to frame in a different way his dissatisfaction with the ultimate result. I am not satisfied there is any question of law raised by this submission.
He then made reference to the lack of a certificate of enforceability for the 2008 order while there was one for the 2006 order. I have dealt with this already.
He again referred to the issue of enforceability and the failure to seek a certificate of enforceability and again I have dealt with that fully.
Finally the father submitted that the registered order is a void order. He said it was void because first the court that made it, the Californian Superior Court, did not have jurisdiction over child support at the time, and second because it contains reference to the 2006 decision by the Registrar about the father not being an Australian resident.
Firstly, there is no indication that this is a void order. If the father wishes to challenge the order, as the Social Security Appeals Tribunal decided, his remedy lies with the court that made the order. If he wants to suggest that that court has been lied to in coming to a determination of the arrears, that is the court that he may go to and have that problem rectified. This is not a case where an Australian Child Support Registrar or the Social Security Appeals Tribunal exercising the powers of the Child Support Registrar can, in effect, sit in appeal or review of the curial processes of the US courts. That is the function of the US courts.
So far as his suggestion of an illegal action by the Registrar, there is no basis for suggesting that the decision was illegal. The father may contend that it was wrong. That does not make it illegal and as I have already said that was not the only basis referred to for the US court making the order that it did. And in any event, I have already indicated that a decision on the point in one jurisdiction is not determinative of the issue in the other jurisdiction.
I am therefore not satisfied that the father has demonstrated any error on a question of law by the tribunal in its decision. His appeal therefore cannot succeed and therefore his application to extend time to bring the appeal will be dismissed. In consequence I will also formally dismiss the notice of appeal.
An application has been made by the Registrar for the Registrar’s costs of these proceedings. The order that is sought is that the father pay the Registrar $6240 being the lump sum prescribed amount for an SSAT appeal within 21 days. The father opposes that order.
In support of the order it is put that the father has been wholly unsuccessful and it was submitted that whilst section 117 of the Family Law Act does apply in determining whether a costs order should be made, these are not usual first instance disputes.
Whilst the matter is determined in the court’s first instance jurisdiction, it is, in fact, an appeal from an administrative body. It involves a consideration of quite limited grounds. It was submitted on behalf of the Registrar that therefore there is a public element involved in this matter and that the public should not always be forced to bear the cost in relation to matters of this kind, especially where the applicant is wholly unsuccessful.
In opposing the order, the father put that he simply cannot afford to pay the amount sought. He submitted that he is retired. He has a life time superannuation pension of about $2500 a fortnight. He has mortgage repayments of $1100 a month, credit card debts totalling $30,000 and a $40,000 equity in his home. He said that currently payments are being automatically withheld from his pension for the child support arrears that are at the root of this particular dispute at the rate of $100 a fortnight, but that he is incurring what he referred to as interest, but in fact may be late payment penalties, at about the same rate, so that, in fact, despite the payments, the arrears are not reducing. He put that he has no means of raising the money to pay costs.
The issue is one governed by section 117 of the Family Law Act, that is, costs are in the discretion of the court. They do not follow the event and a party seeking a costs order must demonstrate reasons why the order should be made. There is no particular elevated hurdle in relation to that. It is the usual civil onus. Subsection (2A) sets out a number of relevant considerations, if they are raised as relevant in a particular matter, that the court must consider.
Certainly the fact that the father has been wholly unsuccessful and the particular nature of these proceedings are relevant matters in favour of a costs order, but the father’s financial circumstances are also a relevant matter, and taking the two into account, I find that this is an evenly balanced matter with the consequence that the Registrar has failed to discharge the onus of demonstrating on the balance of probabilities that a costs order should be made and I will therefore dismiss the costs application.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate:
Date: 2 November 2012
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