Penman and Morgan and Anor
[2017] FamCA 735
•20 September 2017
FAMILY COURT OF AUSTRALIA
| PENMAN & MORGAN AND ANOR | [2017] FamCA 735 |
| FAMILY LAW – CHILD SUPPORT – Where the father seeks a stay in respect of the collection of payments by the Child Support Registrar – Where the father has not discharged the onus of establishing a proper basis for the granting of a stay and that application is dismissed – Where the Court has no jurisdiction to make the orders the father seeks for the Child Support Registrar to remove any late penalties applied to child support payments and for the Child Support Agency to remove court costs from any child support payments – Where an order sought for the Child Support Agency to file detailed accounts of all payments is dismissed as it is an application for pre-suit discovery in support of the application for the Child Support Registrar to remove late penalties – Where the father seeks an order that the parties inform the Child Support Agency that he has 100 per cent care of the parties’ child – Where that application is made without merit and is dismissed as there is a level of controversy surrounding the current cost percentage – Where an order is made for the father to pay the Child Support Registrar’s costs |
| Child Support (Assessment) Act 1989 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) |
| Paxton & Child Support Registrar and Anor (Costs) [2016] FamCAFC 158 |
| APPLICANT: | Mr Penman |
| RESPONDENT: | Ms Morgan |
| 2nd RESPONDENT: | Child Support Registrar |
| INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
| FILE NUMBER: | SYC | 902 | of | 2011 |
| DATE DELIVERED: | 20 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 6 September 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INTERVENOR: | Child Support Registrar |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
Orders
Orders 1, 2, 3, 4 and 8 as sought by the father in his Amended Urgent Application in a Case filed on 19 March 2017 be dismissed.
The father pay the Child Support Registrar’s costs in respect of the father’s Amended Urgent Application in a Case filed on 19 March 2017 so far as that application applied for orders 1, 2, 3, 4 and 8, on a party/party basis as agreed or assessed.
Within twenty one (21) days the father file an affidavit setting out the evidence upon which he seeks to rely in support of his Further Amended Initiating Application for Final Orders filed 23 March 2016 (the first set of Orders 1-4 on page 10, Orders 1, 2 and 3 on page 14 and Orders 4-7 on page 15), together with written submissions.
Within a further twenty one (21) days the Child Support Registrar and the mother file any affidavit upon which they seek to rely, together with written submissions.
Applications 2, 3 and 4 on page 10 and applications 2 and 3 on page 14 and 4-7 on page 15 of the Further Amended Initiating Application filed 23 March 2016 be listed for hearing on 19 December 2017.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Penman & Morgan and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 902 of 2011
| Mr Penman |
Applicant
And
| Ms Morgan |
Respondent
And
| Child Support Registrar |
2nd Respondent
REASONS FOR JUDGMENT
By way of an Amended Urgent Application in a Case filed on 19 March 2017 the father seeks orders in the following terms:
1. A stay on the Child Support Agency collecting any Child Support payments until this has been finalised in the Family court of Australia.
2. The Child Support Agency be required to remove any late penalties applied to child support payments during the stay made by Judge Scarlett.
3. The Child Support Agency be required to remove court costs from any Child Support payments.
4. The Child Support Agency be required to file a detailed account of ALL payments and late penalties applied in this case. Listed by payment dates and related late penalties applied.
...
8. The parents do all acts and things and sign all documents necessary to inform the Child Support Agency that the father has 100% care of [C].
The Child Support Registrar by way of Response filed on 8 March 2017 sought that those applications be dismissed and that the father pay the Child Support Registrar’s costs incurred in connection with the Application in a Case.
The mother indicated that she joined with the Child Support Registrar in opposing any of the orders 1 – 4 and 8 sought by the father.
MATERIAL RELIED UPON
The father supported his application by an affidavit filed on 3 January 2017. During final submissions the father, with leave, was allowed to rely upon pages 173-178 of an affidavit sworn by him on 13 April 2014. The father provided written submissions filed on 25 April 2017.
The Child Support Registrar relied upon affidavits by Mr F filed on 26 April 2016 and 8 March 2017. The Child Support Registrar relied upon written submissions filed on 1 May 2015 and 7 April 2017.
ORDER 1
The Stay Application
The Child Support Registrar in written submissions raised the issue as to what the words “until this has been finalised” meant in the father’s application for a stay in Order 1.
Initially the Child Support Registrar had assumed that the stay sought was to be until interim applications 2-4 were dealt with. On that basis, the gravamen of the Child Support Registrar’s submission was that there was no jurisdiction to make Orders 2, 3 and 4 sought by the father and consequently no jurisdiction to grant a stay pursuant to s 111C(1)(a) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”). That section provides that the power to grant a stay under the child support legislation only applies if a proceeding is instituted in a court having jurisdiction under the Registration and Collection Act.
As set out below, I agree that there is no jurisdiction to make Orders 2, 3 or 4 as sought by the father. Accordingly, had the application for a stay relied upon the jurisdiction to make those orders there would, in turn, be no basis to make a stay order.
It turned out however (and it was not obvious from the material the father relied upon in support of his Amended Urgent Application in a Case filed on 19 March 2017) that the “this” referred to in Order 1 related to extant applications he had made for final orders in a Further Amended Initiating Application which was filed on 23 March 2016. Those orders sought that the Court determine the percentage of care for the parties’ three children (for Callum from 6 June 2011, for E from 7 January 2013 and for C from the commencement of his attendance at B School in 2017). The relevant applications are applications 2, 3 and 4 on page 10 and applications 2 and 3 on page 14 and 4-7 on page 15 of the Further Amended Initiating Application. The father also seeks by way of final orders some determination as to the level of the mother’s taxable income during the 2010 tax year and a further order on a final basis in similar terms to Order 2 sought in the Amended Urgent Application in a Case filed on 19 March 2017.
Final order 2 as sought on page 10 of the father’s Further Amended Initiating Application filed on 23 March 2016 (which amends the Application filed on 1 July 2013) goes back more than 18 months. The provisions of s 111 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) are attracted and the father has the ability to make an application to this Court for an order under s 118 for the period commencing 1 January 2012.
The father seeks an order under s 118(1)(b) of the Assessment Act, namely, “an order varying a parent’s or non-parent carer’s cost percentage for a child”. The father’s order is actually framed in terms of the Court making a declaration in relation to “percentage of care”. Section 55C of the Assessment Act however makes clear that in the event that a percentage of care is determined the table in that section automatically mandates the cost percentage that would then apply. In other words, in order to make an order for a cost percentage a determination of “percentage of care” is both necessary and sufficient.
The Further Amended Initiating Application filed by the father on 23 March 2016 also involved an application for various parenting orders. The Federal Circuit Court (“FCC”) dealt with the application for parenting orders without dealing with the father’s application under the Assessment Act. The matter has been subsequently transferred to this Court by the FCC for this Court to finalise the child support aspect of the matter. I am satisfied that the necessary provisions of s 116 of the Assessment Act are attracted and there is jurisdiction to entertain the application that the father makes. I intend to set the application for final orders down for hearing before myself so that the father’s extant application in relation to child support orders can be finalised. I will make directions for the filing of material in relation to these applications.
Accordingly (although I again repeat it was not obvious on the material filed by the father in support of the interim application), there is an application under Part 7 of the Assessment Act in respect of which the Court does have jurisdiction sufficient to create a jurisdictional basis for the father to make a stay application pursuant to the provisions of s 111C(1)(d) of the Registration and Collection Act.
Should any stay be granted?
In order to have an order for a stay made in his favour the father bears the onus of establishing a proper basis for the stay being made and establishing that the balance of convenience and the impeding rights of the parties would favour the order being made. It would be a substantial factor if the father was able to demonstrate that there was a risk that if the stay was not granted, the rights that he had would be rendered nugatory. The best interests of the children are also a significant consideration.
The father has failed to discharge the onus of establishing that the balance of convenience is in favour of granting a stay. Further, the father has failed to demonstrate how a dismissal of the application for an order for a stay would render rights that he had nugatory.
During oral submissions the father said that the children were impacted by the constant and continuing litigation involving the father and the Child Support Registrar and it was in their best interests that an order be made staying the Registrar’s ability to collect child support payments until the Court deals with his application for a reassessment of child support commitments going back to 2011. I am mindful given what is contained in material provided by the Registrar of the volume of applications and appeals about child support that have been brought by the father from time to time. However, I put no weight on the father’s oral submission that a stay order would be in the children’s best interests given that the father filed no evidence to support the proposition that the children are being affected in an adverse way by this litigation.
I am not satisfied that the father has discharged the onus of establishing a proper basis for the granting of a stay in respect of the collection of payments. Accordingly I dismiss his application for Order 1.
ORDER 2
The father seeks an order that the Registrar be required to remove any late penalties applied to child support payments during the stay made by Judge Scarlett.
The Registrar submits there is no legislative power which permits the Court to order or otherwise direct the Child Support Registrar to reduce, remove or remit late payment penalties. Further, the Registrar submits that the father had the ability to apply to the Child Support Registrar for the remission of late payment of penalties if he considered he had grounds to do so. That right is set out in s 54 of the Registration and Collection Act.
The father in his written submissions asserted that he had formally written to the Child Support Registrar for remission of late penalties and that the Child Support Registrar “flatly refused”. There is nothing in the father’s evidence to support that submission. I invited the father to provide the Court with a copy of the writing referred to by the father in the submission but he was unable to do so.
Section 54(4) provides that any notice the father received from the Registrar must include information to the father as to the pathway available to him to vent his dissatisfaction with the decision of the Registrar (although contravention of that section does not affect the validity of the decision: s 54(5) of the Registration and Collection Act). The father asserted in oral submissions that the letter he received did not give him that indication.
Nonetheless, the Registration and Collection Act provides a pathway of complaint in relation to any decision relating to the remission of late payment penalties. The Registration and Collection Act provides timeframes in which the father may exercise his right to make a complaint.
There is no jurisdiction given to this Court to make an order to require the Registrar to remit late payment penalties.
Accordingly, I dismiss the father’s application for Order 2.
ORDER 3
The father seeks that the Child Support Agency be required to remove court costs from any child support payments.
The legal costs to which the father refers are costs which have been awarded to the Child Support Registrar as a result of various court orders in different jurisdictions. The Child Support Registrar submits that the Family Court has no jurisdiction to interrupt or otherwise amend or revise those orders.
The most recent evidence I have about the amount being claimed by the Child Support Registrar is Annexure B (page 31) to Mr F’s affidavit filed on 8 March 2017. Annexure B is a Child Support Payer Transaction Statement for the period ending 16 January 2017. As at that date that document indicates that the amount outstanding to the Registrar is broken in the following way:
Maintenance debt $7,478.27
Late payment penalty debt $2,543.02
Costs debt $54,168.00
Total $64,189.29
During oral submissions (without any evidence) the father told the Court that the costs debt had increased to $70,000.
The father in support of his application asserts that the Child Support Registrar has joined the liability of child support maintenance and court costs and the Registrar is attempting to treat both as a single liability under the Registration and Collection Act. The father submits that he is financially distressed and is facing the potential of bankruptcy due to the heavily mounting costs of court battles with the Child Support Registrar and that he will be seeking protection against court costs imposed under bankruptcy law. The father asserts that combining the liabilities would affect him because debts under the Registration and Collection Act would survive his potential bankruptcy.
The father submits that given that the Child Support Registrar is trying to link court costs with child support maintenance payable under the Registration and Collection Act, the Registrar has “over reached the principles” of that Act.
I note in the context of that submission that I have evidence before me provided by the father of the decision of the Administrative Appeals Tribunal (“the Tribunal”) of 10 November 2016 where, at [26], the Tribunal found that the father had available to him as a financial resource an annual amount of some $90,000. The Tribunal discussed the father’s lifestyle and amounts that had been paid into his credit cards to allow him to pay for the children’s private school education and discretionary expenditure, including an overseas holiday (at [24]). At the beginning of the proceedings I had dealt with an application by the father for an adjournment on the basis that he was about to travel with a friend overseas to the UK and the father informed me that he would not be available when he came back from the UK because he would then be travelling to New Zealand. I infer from the father’s written submissions that he would seek not to pay any of the costs orders that have been made against him by various courts in favour of the Registrar by including them in a debt in a future bankruptcy which the father currently envisages.
Order 3 as sought by the father must be dismissed on a number of bases:
32.1.I accept that I have no jurisdiction to make such an order;
32.2.In any event, the rationale for seeking the order, so far as I can tell on the information that I have been given, is misconceived, in that the Registrar has not sought to merge court costs outstanding with outstanding maintenance payments.
Accordingly, I dismiss the father’s application for Order 3.
ORDER 4
The father seeks an order requiring the Child Support Agency to file detailed accounts of all payments.
This order is sought in effect by way of an application for pre-suit discovery in support of application for Order 2. I have already dismissed Order 2 and accordingly Order 4 as sought will be dismissed.
In any event I note that the Registrar asserts that the father has already received transaction statements that set out payments the father has made, the liabilities that have posted and the late payment penalties and legal costs that have been added. The Registrar has provided affidavit evidence that gives examples of statements that provide that detail. The father has provided no evidence that would dispute that assertion.
ORDER 8
The father seeks an order that would require he and the mother to do all things and sign all documents necessary to inform the Child Support Agency that the father has 100 per cent care of C.
The mother opposes that order being made.
The father did not make any submission as to the legislative basis for the order sought. If there was power to make this order, it could only be found in the Family Law Act 1975 (Cth) (“the Act”) (possibly in s 64B(2)(i) or s 68B).
But as I will explain, there is no need to determine if jurisdiction exists.
During the hearing I was provided with a copy of the current parenting order made by Judge Kemp on 5 March 2015. Order 2 provides that the parenting orders of 22 August 2014 stand. Although I was not provided with a copy of those orders it was common ground that those orders provide that C equally share his time with each of his parents during school holidays. Order 8 made by Judge Kemp on 5 March 2015 provides that C spend time with his mother every second weekend from school pickup time at B School on Friday or from the completion of any sporting activities on Saturday until Monday morning at school or Tuesday morning if Monday is a public holiday.
The father submitted during oral submissions that those orders created a 100 per cent cost percentage in his favour (presumably pursuant to the provisions of s 55C of the Assessment Act) and that the Child Support Agency had accepted that was so.
The mother does not accept that is so. Looking at the table in s 55C of the Assessment Act (and assuming the father is credited with all the nights that C is at boarding school) C is required under the orders to be with his mother, on my calculation, for about 87 nights a year (if there are 14 weeks of school holidays). Assuming that the father is credited with all the nights that C is actually at boarding school but not with him, 87 nights over 365 is 23 per cent. The table at s 55C of the Assessment Act would give that as a cost percentage to the mother at 24 per cent.
The mother’s position, however, is that C’s time under the orders is evenly divided between the parents and that there is in effect a 50 per cent cost percentage to be given to each of them.
Of course, I am aware that the father is not currently complying with the existing Court orders. In response to the contravention application brought by the mother the father asserts that he has a reasonable excuse for not complying with the order because of C’s current views.
Given the level of controversy surrounding the issue of the current cost percentage, there is no basis at all to force the mother to sign a document saying that she has no cost percentage whatsoever. The father’s application is without any merit and should be dismissed.
COSTS
The Child Support Registrar seeks an order for the payment of his costs incurred in connection with the application of the father.
The power to make that order is in s 117 of the Act. As a general rule the parties should bear their own costs of the proceedings unless the Court is of the opinion that circumstances justify a departure from that rule. In determining what costs, if any, should be made the Court must have regard to the factors prescribed by s 117(2A) of the Act.
The most significant s 117(2A) consideration is (e) given that the father has been wholly unsuccessful in the proceedings.
To the extent the father claims that he is impecunious and a costs order should not be made against him because of his financial position, I do not place any weight on that submission as the father has not provided any detailed information about his financial circumstances, apart from providing a copy of the Tribunal decision referred to earlier in these reasons which indicated that he had an annual financial resource of at least $90,000.
I also take into account that the Child Support Registrar is funded by the public purse and ought not have to bear the costs of reasonably defending the Registrar’s position against an unreasonable attack (see Paxton & Child Support Registrar and Anor (Costs) [2016] FamCAFC 158 at [29]).
I reject any suggestion that might be implied from submissions made by the father that the conduct of the Registrar in these proceedings was anything other than the conduct of a model litigant.
I find that it is just that an order be made that the father pay the Child Support Registrar’s reasonable costs in connection with the father’s Amended Urgent Application in a Case.
APPLICATION FOR FINAL CHILD SUPPORT ORDERS
There remains extant the father’s applications contained in his Further Amended Initiating Application for Final Orders (the first set of Orders 1-4 on page 10, Orders 1, 2 and 3 on page 14 and Orders 4-7 on page 15). As I understand it, those applications are opposed by the mother and the Child Support Registrar.
I intend to require the father within 21 days to file an affidavit setting out the evidence upon which he seeks to rely in support of together with written submissions.
Within a further 21 days the Child Support Registrar and the mother are to file any affidavit upon which they seek to rely, together with written submissions.
This matter will be listed for hearing on 19 December 2017.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 September 2017.
Associate:
Date: 20.9.2017
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