Penman & Child Support Registrar & Anor - [2018] FamCA 252

FAMILY COURT OF AUSTRALIA

PENMAN & CHILD SUPPORT REGISTRAR AND ANOR

[2018] FamCA 252

FAMILY LAW – CHILD SUPPORT – Where the father pursues an application for a departure order pursuant to s 118(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) varying earlier administrative assessments requiring the payment of child support in respect of the parties’ three children – Where the Child Support Registrar opposes the father’s application primarily, but not only because, the Registrar says what the father is attempting to do is an abuse of process, given the remedies the father has already exhausted – Where the continued prosecution by the father of his application is an abuse of process and an attempt to re-litigate by a different path what the father had already agitated by the usual path set in the Assessment Act and the Child Support (Registration and Collection) Act 1988 Cth) – Where leave under s 112(1) of the Assessment Act should not be granted in relation to part of the application relating to the parties’ eldest child and any order in relation to that child can only be backdated 18 months prior to the application – Where the father’s application in relation to the parties’ youngest child is dismissed as it does not change the current assessment and is nugatory – Where the applications left relate to the parties’ eldest child from 1 January 2012 to 17 April 2014 and the parties’ middle child from 7 January 2013 to 17 April 2014 – Where the only ground of departure relied upon by the father was s 117(2)(b)(ii) – Where consent orders entered into by the parties and the paternal grandmother in June 2011 provide for the children to live with their parents for 50 per cent of the time that they are available to live with their parents whilst they are not at boarding school – Where the basis upon which the mother consented for the children to go to boarding school was that the father or paternal grandmother pay for those costs and the ground for departing pursuant to s 117(2)(b)(ii) does not arise – Where considerations under s 117(4) of the Assessment Act do not allow a conclusion that it was just and equitable to make the departure orders sought – Where it is not otherwise proper to make the departure orders sought – Where, in the alternative, the orders sought would also not be just and equitable or otherwise proper because the proceedings are an abuse of process

FAMILY LAW – COSTS – Where the father’s financial circumstances do not preclude making a costs order – Where the Registrar ought not bear the costs of reasonably defending an unreasonable attack – Where the material relied upon by the father is prolix – Where the father has been wholly unsuccessful – Where an order for costs is made on a party/party basis to be agreed or assessed

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Judiciary Act 1903 (Cth)

Confidential and Child Support Registrar and Anor [2013] AATA 426
Luton & Lessels (2002) 210 CLR 333
Penman & Morgan and Anor [2017] FamCA 735
P v Child Support Registrar [2012] FCA 1398
P v Child Support Registrar [2013] FCA 1312
P v Child Support Registrar [2014] FCAFC 98
P v Child Support Registrar [2015] FCA 116
P and Child Support Registrar and Anor [2014] AATA 229
Polec & Staker (2011) 253 FCR 339
The Father and Child Support Registrar and Anor [2012] AATA 396

APPLICANT:

Mr Penman

RESPONDENT:

Child Support Registrar

RESPONDENT:

Ms Morgan

FILE NUMBER:

SYC

902

2011

DATE DELIVERED:

24 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

19 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Australian Government Solicitor

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The father’s application for orders 2 – 4 in his Further Amended Initiating Application filed 23 March 2016 and any similar application made at any time by the father, is dismissed.
The father’s application for orders 5 – 7 in his Further Amended Initiating Application filed 23 March 2016, is dismissed.
The father pay the Registrar’s costs of this application on a party/party basis as agreed or assessed.

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 & Child Support Registrar 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

Child Support Registrar

Respondent

And

Ms Morgan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The father over the years has complained about how “percentage of care” has been calculated for the purposes of working out child support payments, given the parties’ children have gone to boarding school.
The father says that because he or his mother have paid for the children to go to boarding school, he should be credited with their care during the school week.
The father has seemingly exhausted every avenue of complaint but one.
The father pursues before me an application for a departure order varying earlier administrative assessments requiring the payment of child support in respect of the parties’ three children, Mr G (“Mr G”) born in 1998, now aged 19, F (“F”) born in 2000 aged 17, and C (“C) born in 2005 aged 13 (collectively “the children”). The Child Support Registrar (“the Registrar”) opposes the father’s application primarily, but not only because, the Registrar says what the father is attempting to do is an abuse of process, given the remedies the father has already exhausted.

THE FATHER’S APPLICATION

The applications before the court have had a number of iterations. The first appeared in three orders sought in an application filed in the Federal Circuit Court on 1 July 2013. The father has since amended those three orders in his Further Amended Initiating Application filed 23 March 2016 (orders 2-4 pages 14 to 15 of the father’s Further Amended Initiating Application filed 23 March 2016). The orders the father seeks are as follows:
2. An order that determines the percentage of care for the child [Mr G], as it relates to Child Support liabilities is 77% to the Applicant (Father) and 23% to the Second Respondent (Mother), effective 6 June 2011 and the [sic] increased to 100% from 31 December 2013.
3. An order that determines the percentage of care for the child [F], as it relates to Child Support liabilities is 77% to the Applicant (Father) and 23% to the Second Respondent (Mother), effective 7 January 2013 and the [sic] increased to 100% from 31 December 2013.
4. An order that determines the percentage of care for the child [C, as it relates to Child Support liabilities is 100% to the Applicant (Father) and 0% to the Second Respondent (Mother), effective from date of commencement at [B School], in 1 January 2017.
These orders the father seeks are pursuant to s 118(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”); that is an order varying the parents’ “cost percentage” for the child even though the order by the father is framed as an order for a determination in respect of the “percentage of care”. As I explained in the Reasons of 20 September 2017 (Penman & Morgan and Anor [2017] FamCA 735) at paragraph [11]:
11.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.

MATERIAL RELIED UPON

The father relied upon material which was not paginated but was probably more than 900 pages.
A list of documents read is set out in Schedule 1.

JURISDICTION

In my Reasons dated 20 September 2017 I determined at paragraph [12] that I was satisfied that the necessary provisions of s 116 of the Assessment Act were attracted and that there was jurisdiction to entertain the application that the father made.

PARTS OF THE ASSESSMENT ACT RELEVANT TO “PERCENTAGE OF CARE”

The sections of the Assessment Act that are relevant to the issue of percentage of care are s 50; s 54A(1) – (3); s 54E; s 54F; s 55C; s 118 which are set out in Schedule 2 for convenience.

BACKGROUND FACTS

The father (aged 47) and the mother (aged 43) commenced cohabitation in 1996 and married in 1997. The parents separated on 11 August 2010.
Prior to 6 June 2011 Mr G was attending boarding school and equally shared his time residing with his parents on weekends and during school holidays. Mr G’s percentage of care was assessed by the Registrar at 86 per cent in the father’s favour. The other two children were living week about with their parents and sharing school holidays equally.
On 6 June 2011 the Federal Magistrates Court by consent made parenting orders as set out in Schedule 3.
Importantly, those orders provided:
14.1.that the parents have equal shared parental responsibility for the children;
14.2.that Mr G spend equal time with his parents when he wasn’t at boarding school;
14.3.F and C spend equal time with their parents;
14.4.that the father or the father’s mother will be solely responsible for payment of all boarding school expenses which will not be claimed as non-agency child support payments;
14.5.that the Australian Scholarship Group fund be able to be used by the father for the sole purpose of paying boarding school fees.
On 12 August 2011 the Registrar, based on the June 2011 parenting orders, changed Mr G’s percentage of care to 50 per cent for each parent.
The father objected as he was entitled to do under the Assessment Act. On 21 October 2011 that objection was disallowed.
The father sought that disallowance be reviewed by the SSAT. On 23 January 2012 the SSAT confirmed a percentage of care for Mr G at 50 per cent for each parent.
The father applied to the AAT for a review of the SSAT decision. On 28 June 2012 the AAT confirmed the SSAT’s decision (The Father and Child Support Registrar and Anor [2012] AATA 396).
The father appealed to the Federal Court of Australia. On 29 November 2012 Buchanan J upheld the father’s appeal on the basis that the AAT hadn’t properly considered s 54A(3) of the Assessment Act and remitted the matter for rehearing by the AAT (P v Child Support Registrar [2012] FCA 1398).
On 25 June 2013 the AAT, having reheard the matter, again confirmed the decision of the SSAT namely a percentage of care for Mr G at 50 per cent for each parent (Confidential and Child Support Registrar and Anor [2013] AATA 426).
The father again appealed to the Federal Court of Australia. On 5 December 2013 Wigney J dismissed the father’s appeal (P v Child Support Registrar [2013] FCA 1312).
The father appealed Wigney J’s decision to the Full Court of the Federal Court. On 11 August 2014 that appeal was dismissed by Perram, Perry and Gleeson JJ (P v Child Support Registrar [2014] FCAFC 98). The ultimate result was that Mr G’s percentage of care was confirmed at 50 per cent between his parents.
It can be seen that in relation to the issue of Mr G’s percentage of care, the father had worked his way through the five stages of review and appeal then available under the Assessment Act and the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”).
Prior to January 2013 F’s percentage of care was assessed at 50 per cent for both parents given that the June 2011 parenting orders provided equal shared parental responsibility to both parents and that he lived week about with his parents during school term and shared school holidays equally.
In January 2013 F also started at boarding school. Under the parenting orders he was to spend weekend and holidays equally with his parents.
On 8 January 2013 the father sought that the Registrar change F’s percentage of care from 50 per cent to 77 per cent in his favour.
On 8 March 2013 the Registrar declined to change F’s percentage of care leaving it at 50 per cent for both parents.
The father lodged an objection which was disallowed by the SSAT either in May or July 2013 (the material has two inconsistent dates).
The father sought a review of that disallowance by the SSAT. On 17 April 2014 the AAT varied the percentage of care for F to 55 per cent in the father’s favour backdated to 8 January 2013 (P and Child Support Registrar and Anor [2014] AATA 229).
The father appealed the decision of the AAT to the Federal Court of Australia. That appeal was dismissed by Katzmann J on 27 February 2015 (P v Child Support Registrar [2015] FCA 116).
Again the father had worked his way through the stages of review and appeal under the Assessment Act and the Registration Act.
Notwithstanding the provisions of any parenting order, Mr G and F have effectively spent no time with their mother since 31 December 2013.
The administrative assessments for both Mr G and F have been calculated on the basis that the percentage of care for each child has been 100 per cent with the father since 17 April 2014.

PREVIOUS HISTORY OF REVIEWS AND APPEALS AND ABUSE OF PROCESS

Given the history of reviews and appeals set out above, the Registrar argues that the continued prosecution by the father of the current proceedings are an abuse of process.
Notwithstanding the father did not invite me, in his submissions, to make different factual findings to those made in either of the AAT hearings, the father submits:
35.1.That although two merits reviews have taken place in the AAT (one in relation to Mr G and one in relation to F), the AAT is not a court
35.2.The appeals to the Federal Court and the Full Court of the Federal Court have been on questions of law
35.3.Consequently there has never been a merits review in a court
35.4.The father is therefore entitled to proceed with the current application.
The principle and sufficient answer to that contention is that Parliament has provided a normal pathway by which percentage of care decisions may be challenged. While the father did raise the constitutionality of the Federal Parliament legislating the decision making pathway that they have, the High Court in Luton & Lessels (2002) 210 CLR 333 upheld the constitutionality of the child support scheme. The father has not filed a Notice of a Constitutional Matter. In any event, s 78B(1) of the Judiciary Act is not properly invoked. The father has not identified a matter arising under the Constitution or involving its interpretation, in the facts of this case.
I find that the continued prosecution by the father of his application before this court is an abuse of process and an attempt to re-litigate by a different path what the father had already agitated by the usual path set in the Assessment Act and the Registration Act. That finding is relevant to ultimate alternate conclusions that I have reached concerning s 112(1) and s 117(4), (5) and (9) of the Assessment Act.

LEAVE IN RESPECT TO THE APPLICATION RELATING TO MR G

The current application in relation to Mr G was filed in another form on 1 July 2013. The father seeks an order under s 118 of the Assessment Act which is backdated to 6 June 2011, a period in excess of 18 months.
Section 111(1)(b) of the Assessment Act provides:
(1) A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
…
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
[Emphasis added]
Section 112(1)(b) of the Assessment Act provides:
(1) If an application is made to a court under section 111, the court may grant leave for:
…
(b) the court to make an order under section 118.
[Emphasis added]
Section 112(2) of the Assessment Act provides:
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
[Emphasis added]
Section 112(4)(a) of the Assessment Act provides:
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
…
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
Section 112(5) of the Assessment Act provides:
(5) The court may have regard to any other relevant matter.
The father firstly asserts that no leave is required because on 23 March 2012 he sought an order be made in the following terms:
The father and mother do all acts and things and sign all documents necessary to inform the Child Support Agency (“CSA”) that the father has 100 per cent financial care of the children while attending [B School]. Result in a 86 per cent care assessment for CSA purposes
The father argued that this was a child support departure application. I reject that submission. The order in its terms, seeks a mandatory injunction against each of the parents requiring each to do something. It is not an application for an order under s 118 of the Assessment Act.
Next the father argues that the 23 March 2012 application should be taken into account on a question of the delay in bringing a departure application retrospectively.
The father otherwise offers no explanation for the delay in bringing the application.
The Registrar offers one by drawing attention to the fact that the father’s application for a departure order was only made 5 working days after the result in the AAT on 25 June 2013.
The father does not satisfactorily explain delay and the Registrar’s point is well made. I accept that it was only after the father had lost in the AAT that he brought this application and his pursuit of the normal process to resolve this issue was the real reason for the delay.
On the question of hardship, the father submitted that his decision to fund his children’s education has caused him considerable hardship and he is now not able to afford his own accommodation or “considerable luxuries that most people would consider normal”. The father amended his Financial Statement filed 20 November 2017 (Exhibit 12) to correct errors he had made. Exhibit 12 indicates that the father receives no weekly income and has total weekly personal expenditure of $3,854 with total property of $3,000 and liabilities of $730,102.90. The father submitted that every hundred dollars means a lot to him and continuation of this debt would be a hardship to him. He is undertaking a Masters degree course at university living at his mother’s house and he says is without any income at all.

The father says that he has taken out loans and gone into considerable debt as a result of paying for the children to attend B School. The father pointed to paragraph [75] of P and Child Support Registrar and Anor [2014] AATA 229 where Senior Member Redfern states, “I accept AP’s [the paternal grandmother’s] evidence that she “loaned” money to the applicant [the father] and was hoping at some stage to recover these monies, or part thereof, from him. This was clearly not a commercial arrangement.” I accept the father has entered into a document with his mother which sets out the arrangements in relation to “loaned monies”. The consent orders of June 2011 state that the father or his mother would be solely responsible for the payment of the school fees. I was not taken to any evidence which would indicate how, in the foreseeable future, the father could “repay” his mother.
The father indicated that his current commitment to pay for B School for the two boys who continue to go there F (in 2018) and C (potentially for the next five years). For 2018 he estimated his expenses the cost of sending them to B School will be in excess of $100,000. The father confidently predicted he would fund that expenditure but did not make it clear as to how he was going to do that apart from a general assertion that he would be borrowing the money.
Overall the father asserted that if the primary order he sought wasn’t made, he would be left with a child support debt of $5,612 together with penalties of $3,077. I am unable to discern what arrears and penalties might arise in respect of the period between 6 June 2011 and 1 January 2012 as they relate to Mr G if leave is not granted but it would clearly be a lesser amount.
Given the father is confidently committing to pay $100,000 in 2018 to B School for the schooling of the two younger boys, I am unable to find the father will suffer hardship if leave is not granted.
I find that leave under s 112(1) of the Assessment Act should not be granted.
In the alternative, I accept the Registrar’s submission, which he makes relying upon s 112(5) of the Assessment Act, that leave should not be granted on the basis that the proceedings are an abuse of process.
Accordingly, any order in relation to Mr G can only be backdated to 1 January 2012, being 18 months prior to the application.

THE ORDER SOUGHT IN RELATION TO C

There has been an assessment by the Registrar that since 1 January 2017 the father’s care percentage has been 100 per cent. I asked the father why then, isn’t the application in relation to the child C nugatory given the father is seeking a departure from an assessment which is based upon the cost percentage he seeks by way of order. The father’s answer was for the future in case the Registrar or the mother seeks to have it changed. But it may well be a future change in care arrangement would justify such a change in this element of the formaulae. I shall dismiss the application in relation to C because it doesn’t change the current assessment and that part of the father’s application accordingly is nugatory.

SECTIONS 117 AND 118 OF THE ASSESSMENT ACT AND WHAT IS LEFT OF THE FATHER’S APPLICATIONS

After consideration of the leave questions in respect of Mr G and the nugatory nature of the application in relation to C what is left is an application in relation to Mr G from 1 January 2012 to 17 April 2014 and an application in relation to F from 7 January 2013 to 17 April 2014.
The departure application is dealt with under the statutory framework of s 117 and s 118 of the Assessment Act.

Ground for Departure – s 117(2) of the Assessment Act

In order for the father to be successful, the court has to be satisfied that a ground for departure exists.
The only ground of departure relied upon by the father was s 117(2)(b)(ii) which is in the following terms:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
…
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
…
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
The father’s argument in relation to that ground was that this case was one with special circumstances arising and one in which the costs of maintaining the children were significantly affected by the children being educated in the manner that was expected by their parents.
As indicated, orders were made by consent on 6 June 2011 and their full text is set out in Schedule 3. Those orders relevantly included:
1.That [Ms D Penman] (the husband’s mother) is joined as a party to these proceedings.
2.That the Husband (father) and the Wife (mother) have equal shared parental responsibility for [Mr G] (“[Mr G]”) born … 1998 and F (“[F]”) born … 2000 and [C] (“[C]”) born … 2005 (“the children”) including but not limited to:
…
4.That during school terms the children [Mr G, F and C] live with the father each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.
5.That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the Husband and the Wife in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.
…
7.The Court notes that the child [Mr G] is currently at boarding school and that the child [F] is due to be enrolled to commence attending boarding school at [B School] in 2013.
8.That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.
…
12.That the Husband and the Wife do all acts and things and sign all documents necessary to enrol F and C in [B School] (“B School”) as weekly boarders for their secondary schooling. That such documents be completed and forwarded to [B School] no later than the dates specified by the School.
13.That the Husband and/or the Husband’s mother [Ms D Penman] will be solely responsible for the payment of all and any school fees and expenses at [B School] and that any such payments will not be claimed by the Husband as a non-agency child support payments.
…
15.That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children’s clothing, uniform and other equipment is returned with the children, where reasonably possible, washed.
These orders were made by consent at the invitation of the mother, father and paternal grandmother.
The orders provides that Mr G and F live with each of their parents for 50 per cent of the time that they are available to live with their parents whilst they are not at boarding school.
Importantly, a plain reading of the orders indicates that the basis upon which the mother was consenting for the children to go to B School was that the father or the paternal grandmother paid all the costs for that to happen. I accept the mother’s position was that she had no expectation that the children would go to B School, absent the order that she would not be required to pay (either directly or indirectly) for that private school education. It was not the mother’s expectation that the fact that the father or the father’s mother, paid B School fees, would lead to the mother becoming the subject of a negative child support outcome.
The Child Support Registrar submitted that there were no special circumstances in this case and the costs of maintaining the children were not significantly affected because the children were being educated in a manner that was expected by their parents as the mother had no expectation that the children would be educated at B School unless the father bore all the costs of it happening.
The father submitted that Polec & Staker (2011) 253 FCR 339 “highlights the fact that, in a situation where a child is at boarding school, the Child Support Registrar had been guided – or accepted the fact that the person paying for those was actually the one providing for the care of the child.” The father made similar submissions in P v Child Support Registrar [2013] FCA 1312 where at [104] Wigney J found that the father’s contention that the “tribunal erred in law by failing to follow Polec, or failing to give “paramount consideration” to the financial arrangements for the period of time that [Mr G] spent at boarding school” was without merit. Wigney J went on to state at [108] “Nor is Polec authority for the proposition, as [the father] contends, that in all cases where a child is not residing with her or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”. Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.”
The father again contended that the Tribunal erred in its application of Polec in P v Child Support Registrar [2015] FCA 116. Katzmann J also rejected that submission at [90]:
Fourthly, [the father] referred to the remark in Polec at [45] that “[t]he most obvious matter to be considered in the circumstances of this case in which the child was living with neither parent was who is meeting the child’s costs”. He contended that the tribunal in the present case had “arrived at the diametrically opposed position in regard to the importance of Financial support” when it concluded that financial support was only one factor to be taken into account. There are two problems with this contention. It treats “obvious” as a synonym for “paramount”, which it is not. And the underlying proposition that financial support is the paramount consideration in all cases was rejected in [Mr G’s] case: [2013] FCA 1312 at [108]; [2014] FCAFC 98 at [113].
I find that because the father and his mother agreed to pay the private school fees and the mother only agreed for the children to go to B School on that basis the ground for departing from an administrative assessment pursuant to s 117(2)(b)(ii) is not made out.

Just and Equitable – s 117(4) of the Assessment Act

If I am wrong about there being no ground under s 117(2)(b)(ii) of the Assessment Act, I consider whether it would be just and equitable to make the order sought.

Nature of the duty of the parent to maintain a child

Sections 3 and 4 of the Assessment Act set out the scope of the duty of parents to maintain their children and the objects of the child support legislation.

The proper needs of the child

The father relies upon his Financial Statement. The father did not fill out Part N of his Financial Statement. Annexure C to the father’s affidavit filed 1 December 2017 are invoices from B School. The father also annexed (Annexure M) bank statements he prepared for the Tribunal in 2016. I am unable to make any definite assessment as to what the father says are the children’s costs during the relevant period and I am unable to make any finding about the proper needs of the children.
I don’t have any evidence from the mother who chose not to file an affidavit or a financial statement

The financial circumstances of either child

There is no indication that either of the children have an earning capacity or property or financial resources.

The financial circumstances of the parents

Annexure I to the father’s affidavit filed 1 December 2017 includes some of the father’s individual tax returns. His tax returns for the financial years ending 2012, 2014 and 2015 indicate that he received total income of $16,282, $18,145 and $21,088 respectively.
As indicated, I do not know anything about the mother’s financial circumstances.

The earning capacity of each parent who is a party to the proceedings

The mother made some oral statements from the bar table about the father’s earning capacity. The SSAT decision of 13 September 2012 found that for the period 4 October 2011 to 31 October 2013 the father’s adjusted taxable income was $64,865 and the mother’s adjusted taxable income was $47,368 (page 110 of Annexure T). However, in order to take earning capacity into account, the provisions of s 117(7B) Assessment Act need to be satisfied and there is no indication they have been. I am unable to take any earning capacity of the father into account.

The commitments of each of the parents who is a party to the proceedings that are necessary to enable to the parent to support himself or herself or any other child

I have otherwise referred to the inadequate state of the evidence about the financial circumstances of each parent. I am unable to make any useful findings about the parents’ commitments.

The direct and indirect costs incurred by the carer entitled to child support in providing care for the children

Again there is no detail from the father about that.

Any hardship that would be caused to the child or the carer or the liable parent by making or refusing to make the order

I have already discussed the issue of hardship in the context of the leave application.
Given my discussion relating to the father’s confident prediction that he will be able to pay substantial and significant ongoing school fees (discussed above), I am unable to find that he will suffer hardship if the assessment is not amended in accordance with his application.
Section 117(9) is in the following terms:
Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
The father argued that to make a departure order would be just and equitable because he should not have to pay child support at the same time that he was paying for the children’s school fees and the mother did not have the costs of having to keep the children with her during the week during school term because they were at B School and he was paying for them to attend B School. He submitted therefore it would be not just and equitable for her to have the benefit of a child support assessment in her favour that was based on her having the children 50 per cent of the time. I do not accept that argument. I infer that neither the father nor the mother incurred day to day expenses as a result of the children being ordinarily in their households during the week during school term. In the event that there were savings, the evidence is insufficient to be able to make any findings about what those savings were. The father has made no submission about how any savings, if they were quantifiable, would translate into a change in the calculation of the percentage of care.

Conclusion about s 117(4)

There is no consideration under s 117(4) of the Assessment Act that would lead me to conclude that it was just and equitable to make the departure order sought by the father.

Otherwise proper – s 117(5) and (9)

In order to make a departure order, the court also has to be satisfied that it would be otherwise proper to make the order. The matters which the court takes into account pursuant to s 117(5) are usually confined to issues relation to the protection of the public purse and have no particular relevance in this case.

Conclusion

For the reasons set out above, the father’s applications in relation to percentage of care shall be dismissed.

THE ABUSE OF PROCESS ARGUMENT

In the alternative, I consider the Registrar’s argument about abuse of process being considered, particularly under s 117(4) and (5). As indicated, s 117(9) says that the matters set out in those two subsections do not limit the matters to which the court may have regard.
One of the objects of the Assessment Act is to be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings. The father has availed himself of all the non-court processes to pursue these issues.
The Registrar’s argument under s 117(9) was that these proceedings are an abuse of process and the father has already exercised his rights pursuant to the procedure set out in both the Assessment Act and the Registration Act in respect of the issue of percentage of care and it would not be just and equitable and otherwise proper to revisit these issues.
I have accepted these proceedings are an abuse of process and I find that that is an alternate reason why it would not be just and equitable or otherwise proper to make the order sought by the father, in circumstances where the father had sought a review of the same subject matter using the usual pathway under the Assessment and Registration Acts.

NOTE

I should for completeness note that had the father been successful in obtaining the orders he sought, he would have agreed to an order that the mother not have to pay any monies to him either directly or indirectly as a result of those orders affecting a retrospective assessment of a child support liability or any Centrelink debt. I do not need to make that order given the decision that I’ve made.

OTHER ORDERS SOUGHT

There remains three other orders which the father seeks in his Further Amended Initiating Application:
5. An order that determines the Second Respondent (Mother) be set no less than the Second Respondent’s (Mother’s) taxable income as registered with the Australia Taxation Office in June 2010 for all period determined by the Child Support Registrar.
6. The court notes that the Second Respondent’s (Mother’s) taxable income was recorded as $44,000 in June 2010.
7. The Child Support Registrar be prevented from imposing and/or collecting late fees imposed during the periods that Court Ordered Stays were and are in place.
The father made no submission in relation to orders 5 and 6 as sought and that part of the application will be dismissed.
The father did not indicate the basis upon which he asserted the court could or should make order 7 as sought and that part of his application will also be dismissed.

COSTS

The Registrar seeks a costs order against the father on a party/party basis as agreed or assessed.
Section 117(1) of the Act provides that, subject to s 117(2), each party to proceedings under the Act shall bear his or her own costs. Section 117(2) of the Act provides that if the court is of the opinion that there are circumstances that justify it doing so, the court may make such order as to costs as the court considers just. In considering what order to make (if any), the court shall have regard to relevant matters contained in s 117(2A) of the Act.
The Full Court in Paxton & Child Support Registrar & Anor (Costs) [2016] FamCAFC 158 said at paragraph [29] that while the Registrar is funded by the public purse he “ought not have to bear the costs of reasonably defending his position against an unreasonable attack”.
I have discussed the evidence about the father’s financial circumstances above. To the extent that the father submits that a costs order should not be made due to impecuniosity (based on evidence in his Financial Statement), the impecuniosity of a litigant does not necessarily mean a costs order wouldn’t be made under s 117.
The Registrar submitted that a relevant consideration for the court in deciding whether to exercise the discretion to award costs will be to consider the manner in which the proceedings were conducted and in that vein drew attention to the amount of evidence filed by the father, including 300 pages of affidavit evidence filed the day prior to the hearing without any indication given in any covering affidavit or written submission as to the relevance of that information to these proceedings. The material relied upon by the father is prolix.

The father has been wholly unsuccessful.
I find that it is just to make a costs order in favour of the Registrar on a party/party basis to be agreed or assessed.
In the alternative, a similar costs order, in the form sought by the Registrar, is justified on the basis that these proceedings, as prosecuted by the father, were an abuse of process.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 24 April 2018.

Associate:

Date: 24.4.18

SCHEDULE 1

Documents relied upon by the Father

Outline of submissions filed 20 November 2017
Further Amended Application filed 23 March 2016
Affidavit filed 1 December 2017 (sworn 19 November 2017)
Affidavit filed 18 December 2017 (sworn 10 December 2017)
Affidavit filed 18 December 2017 (sworn 11 December 2017)
Affidavit filed 18 December 2017 (sworn 12 December 2017)
Financial Statement filed 20 November 2017

Documents relied upon by the Registrar

Submissions filed 31 October 2017
Submissions filed 11 December 2017
Affidavit filed 17 April 2016

SCHEDULE 2

Section 50 of the Assessment Act provides:

Determination of percentage of care--responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or

(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.

(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

Section 54A(1)-(3) states:

Working out actual care, and extent of care, of a child
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.

Section 54E provides:

Registrar must have regard to guidelines about the making of determinations
In making a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35N(1) of the Family Assistance Act.

Section 54F states:

Determination must be revoked if there is a change to the responsible person's cost percentage
(1) If:
(a) a determination of a responsible person's percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and
(c) the Registrar or the Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(d) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(e) section 54G does not apply;

the Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination--the day on which the interim period ends; or
(ii) otherwise--the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended--the day on which the interim period ends; or
(c) otherwise--the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

Section 55C states:

Working out cost percentages
A parent's or non-parent carer's cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent's or non-parent carer's (as the case requires) percentage of care for the child for the day.

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

Section 118 provides:

Orders that may be made under Division
(1) The orders that a court may make under this Division are as follows:
(a) an order varying the annual rate of child support payable by a parent;
(b) an order varying a parent's or non-parent carer's cost percentage for a child;
(c) an order varying a parent's child support income;
(d) an order varying the parents' combined child support income;
(e) an order that:
(i) the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is ordered to be, greater than 2.5 times the annualised MTAWE figure for the relevant June quarter, is the column headed "2 to 2.5"; and
(ii) the column is to apply as if the second dollar amount in the heading to that column did not apply;

(f) an order varying a parent's child support percentage;
(g) an order varying a parent's adjusted taxable income;
(h) an order varying a parent's relevant dependent child amount or multi-case allowance;
(i) an order varying a parent's self-support amount;
(j) an order varying the costs of the children.

(2) An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period.
(2B) A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
(2C) If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
(3) If the court makes an order under this section, the court must:
(a) give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and
(b) cause the reasons to be entered in the records of the court.

(4) Subsection (3) does not apply in relation to an order if:
(a) it is an order made by consent; and
(b) the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.

(5) A contravention of subsection (3) in relation to an order does not affect the validity of the order.

SCHEDULE 3

BY CONSENT IT IS ORDERED

That Ms D Penman (the husband’s mother) is joined as a party to these proceedings.

PARENTING

That the Husband (father) and the Wife (mother) have equal shared parental responsibility for Mr G (“Mr G”) born in 1998 and F (“F”) born in 2000 and (“C”) born in 2005 (“the children”) including but not limited to:
(i)The school or schools that each child is to attend.
(ii)The religious instruction and upbringing of each child.
(iii)The medical treatment that each child is to receive.
(iv)The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them.
That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children.
That during school terms the children Mr G, F and C live with the father each alternate week from after school Monday until the commencement of school the following Monday, and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.
That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the Husband and the Wife in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.
That in order to calculate half of each of the children’s school holidays the Husband and the Wife will calculate the number of days from the first day of the holiday period to the day before school returns, divide that by two and the changeover date between the Husband and the Wife date will be 10.00am the day after the middle day.
The Court notes that the child Mr G is currently at boarding school and that the child F is due to be enrolled to commence attending boarding school at B School in 2013.
That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.
That the children spend from 9.00am until 6.00pm Father’s Day of each and every year with the father, and 9.00am until 6.00pm Mother’s Day of each and every year with the mother, in the event that those days are not days that the children would spend with that parent
When changeover is to occur other than at the children’s schools, the father or his nominee will collect the children from the mother or her nominee in H Town the commencement of his time with the children and the mother or her nominee will collect the children from the father or his nominee at this same location at the conclusion of his time with the children.
That each parent have liberal telephone contact with the children when they are in the other parent’s care. Either party will permit telephone communication via their mobile phone should the nominated telephone number be unavailable.
That the Husband and the Wife do all acts and things and sign all documents necessary to enrol F and C in B School (“B School”) as weekly boarders for their secondary schooling. That such documents be completed and forwarded to B School no later than the dates specified by the School.
That the Husband and/or the Husband’s mother Ms D Penman will be solely responsible for the payment of all and any school fees and expenses at B School and that any such payments will not be claimed by the Husband as a non-agency child support payments.
That each of the parents use their best endeavours to ensure that the children are transported to and from all extracurricular activities they are involved in during the time that the children are living with that parent.
That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children’s clothing, uniform and other equipment is returned with the children, where reasonably possible, washed.
That each party notify the other of the following:
(a)The names and addresses of the children’s treating doctors and dentists.
(b)The dates of parent/teacher functions, sports carnivals and details of the children’s extra-curricular activities. That the Husband and the Wife shall ensure the other parent is advised of any specialist appointments or medical appointments involving the child/children so as to enable the other parents attendance and also so as to enable either parent to obtain information from the treating specialist/doctor.
(c)immediately notify the other if any child is seriously ill or is to be admitted into hospital at such times as the children are living with that party and shall provide full details of the illness or injury and permit the other party to visit the child is hospitalised.
(d)That each party shall notify the other of any medical treatment or allied health care received by the child whilst living with either parent and shall ensure that any medication prescribed by a health care provider, return with the child and that the child takes the medication as prescribed.
(e)Any intended change of residential address for the children within 28 days of the change being affected together with full details of such address.
(f)Any intended change of mobile telephone number within 24 hours.
That excepting emergencies communication between the Husband and the Wife in relation to the children is to be by email or SMS.
That at such times as either party takes the children on holidays outside the Sydney area that that provide the other party with the address of where the children will be staying where reasonably possible.
That the Husband and the Wife do all acts and things and sign all documents necessary to authorise any school attended by the children to release to both Husband and the Wife copies of all school newsletters, notes, school reports and school photographs.
That neither party is to denigrate the other or any other person in that party’s household in the hearing or presence of the child/children nor allow any other third party to do so.
That both Husband and the Wife are restrained from moving the children’s residence from outside of the Sydney Metropolitan Area without the prior written consent of the other parent first had and obtained.
That both Husband and the Wife forthwith do all things necessary and sign all documents to enrol in a post separation parenting programme with Interrelate or other similar organization.
That the Court notes that the Husband and the Wife have agreed to Order 22 above so that they may improve the communication between them so that they can more effectively co-parent the children.