PENMAN & MORGAN
[2020] FCCA 113
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENMAN & MORGAN | [2020] FCCA 113 |
| Catchwords: CHILD SUPPORT – Want of jurisdiction in the Court – orders made. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.116(1) |
| Cases cited: Penman & Morgan [2019] FamCA 146 |
| Applicant: | MR PENMAN |
| Respondent: | MS MORGAN |
| File Number: | PAC 4564 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 16 December 2019 |
| Date of Last Submission: | 16 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
ORDERS
The father’s Initiating Application filed 16 September 2019 is dismissed for want of jurisdiction in the Court.
The father’s Application in a Case filed 16 January 2020 is dismissed for want of jurisdiction in the Court.
The return date for this latter application on 20 April 2020 is vacated.
IT IS NOTED that publication of this judgment under the pseudonym Penman & Morgan is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4564 of 2019
| MR PENMAN |
Applicant
And
| MS MORGAN |
Respondent
REASONS FOR JUDGMENT
The Applicant father, having filed an Initiating Application on 16 September 2019, and an Application in a Case on 16 January 2020 (in relation to proposed interim orders, which repeat his proposed interim orders in his Initiating Application), seeks final and interim orders, inter alia, that the mother be responsible for the payment of any and all school fees and expenses of B School for the child [C] born … 2005.
In the alternative to that proposed order, the father seeks an order that the mother be responsible for the payment of 50% of such school fees for the said child.
The father seeks other proposed orders, in the alternative, that the mother provide certain information to the Child Support Agency “of her consent that any and all school fees and expenses of B School for (the subject child) be considered eligible for the father to claim as child support payments.”
The father then seeks an order that the mother take certain action to inform the Child Support Agency of her consent that any and all past school fees and expenses of B School for the subject child made by the father be considered eligible for the father to claim as child support payments. He seeks other facilitative orders.
The mother seeks that the father’s above applications be dismissed.
The father annexes to his Initiating Application the judgment of Stevenson J in the Family Court of Australia dated 15 March 2019 (Penman & Morgan [2019] FamCA 146). In that judgment, Her Honour dismissed the father’s proposed orders that related to issues of child support.
It is helpful at this point to set out paragraphs 15 to 30 and 93 to 102 of Her Honour’s judgment.
15. The history in relation to child support disputation was set out in the reasons for judgment of Watts J of 24 April 2018 as follows:
15. On 12 August 2011 the Registrar, based on the June 2011 parenting orders, changed the [G’s] percentage of care to 50 per cent for each parent.
16. The father objected as he was entitled to do under the Assessment Act. On 21 October 2011 that objection was disallowed.
17. The father sought that disallowance be reviewed by the SSAT. On 23 January 2012 the SSAT confirmed a percentage of care for [G] at 50 per cent for each parent.
18. 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).
19. 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).
20. On 25 June 2013 the AAT, having reheard the matter, again confirmed the decision of the SSAT namely a percentage of care for G at 50 per cent for each parent (Confidential and Child Support Registrar and Anor [2013] AATA 426).
21. 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).
22. 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 [G’s] percentage of care was confirmed at 50 per cent between his parents.
23. It can be seen that in relation to the issue of [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”).
24. Prior to January 2013 [E’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.
25. In January 2013 [E] also started at boarding school. Under the parenting orders he was to spend weekend and holidays equally with his parents.
26. On 8 January 2013 the father sought that the Registrar change [E’s] percentage of care from 50 per cent to 77 per cent in his favour.
27. On 8 March 2013 the Registrar declined to change [E’s] percentage of care leaving it at 50 per cent for both parents.
28. The father lodged an objection which was disallowed by the SSAT either in May or July 2013 (the material has two inconsistent dates).
29. The father sought a review of that disallowance by the SSAT. On 17 April 2014 the AAT varied the percentage of care for [E] to 55 per cent in the father’s favour backdated to 8 January 2013 (P and Child Support Registrar and Anor [2014] AATA 229).
30. 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).
...
CHILD SUPPORT ISSUES
93. The orders relevant to issues of child support which were sought by the father were as follows:
(7) The parents do all acts and things to inform the Child Support Agency that all past and future medical expense incurred by the father for treatment of the children, Mr G, Mr E & [C] be eligible as non-agency child support payments.
(8) The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the knee surgery of Mr E during 2015 and 2016 will be claimed by the Father as a non-agency child support payments.
(9) The parents do all acts and things to inform the Child Support Agency that all of the medical expense incurred relating to the remotely [sic] of wisdom teeth for Mr G during 2016 will be claimed by the Father as a non-agency child support payments.
(10) The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of obtaining passports for the children, Mr G, Mr E & [C] be eligible as non-agency child support payments.
(11) The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the purpose of extra-curricular tutoring Mr G, Mr E & [C] be eligible as non-agency child support payments.
(12) The parents do all acts and things to inform the Child Support Agency that all past and future expenses incurred by the father for the attendance of Mr G, Mr E & [C] at B School, be eligible as non-agency child support payments.
94. As outlined above the father has an extensive history of disputation involving child support issues, in terms of applications to the Child Support Agency and litigation in the Social Security Appeals Tribunal, the Administrative Appeals Tribunal and the Federal Court both at first instance and on appeal. Despite this extensive history, the father did not identify the evidence upon which he relied in support of these applications. The father did not identify a source of power which he contended was available to support his applications. The father made only very limited submissions on issues relating to child support.
95. The father stated in his final submissions: "I have not asked for a departure order". The father did not identify in any alternative form of order, nor any provision/s in the child support legislation which would confer jurisdiction on this Court to provide his proposed relief. Effectively, the father sought orders which would compel the mother to provide certain information to the Child Support Agency for purposes which may assist him in reduction of his existing child support debt of $62,866.95 (Exhibit 5).
96. Counsel for the ICL suggested in final submissions that, perhaps, s 64 of the Act may provide a source of power for the relief sought by the father. I infer that counsel for the ICL referred to s 64B(2)(f) which provides as follows:
A parenting order may deal with one or more of the following:
...
(f) maintenance of a child;
…
97. For reasons to which I now refer, I do not consider that s 64B of the Act provides a basis for the orders of the relief sought by the father.
98. Firstly, s 64B of the Act applies only to children who have not attained the age of 18 years. Accordingly, the relief sought by the father in respect of Mr G and Aiden is unavailable on that basis alone.
99. Secondly, I do not consider that the orders proposed by the father deal with the question of "maintenance of a child". The father has an ongoing dispute with the Child Support Agency concerning alleged arrears of child support. That dispute is not a matter which concerns the mother.
100. Thirdly, even if the orders deal with the question of “maintenance of a child”, there is a note contained in s 64B(2) that:
Note: Paragraph (f)—a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies
101. Similarly, s 66E states as follows:
(1) A Court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3) This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.
102. In these circumstances, I will dismiss those paragraphs of the father's application which relate to issues of child support.
This Court on 16 December 2019 reserved its decision as to whether or not the father’s present Initiating Application filed 16 September 2019 provided a jurisdictional basis for the Court to hear the application. It made directions for written submissions by the parties. The Court has considered those submissions. The Court has considered the father’s Affidavit evidence filed to date in these proceedings, which includes an Affidavit filed 16 September 2019, his Affidavit filed 16 January 2020, together with the mother’s Affidavit filed 12 December 2019. The Court has considered the parties respective Financial Statements. The Court has considered the judgment of Her Honour Justice Stevenson.
In the view of the Court, there is no jurisdictional basis for the Court to hear the father’s Initiating Application filed 16 September 2019, nor his recent Application in a Case, having regard to his proposed orders, the above evidence filed to date in the proceedings, and having regard to the above judgment of Her Honour Justice Stevenson in relation to child support issues. With respect, the father’s reference to various cases, as referred to in his written submissions, do not assist his contention that this Court has jurisdiction to hear his present applications.
The Court observes that proposed order 12 (see above) that the father sought before Her Honour, at least as far as the subject child is concerned, bears a significant resemblance to the father’s proposed order 3 and 4 of his current proposed orders.
The Court observes that no departure application is made by the father under section 116 (1) of the Child Support (Assessment) Act 1989 (Cth). That appears to be explainable by reason of there having been a past administrative assessment of child support relating to the subject child, and the threshold requirements of subsection (1) of section 116 not being satisfied in the circumstances of these proceedings.
Section 116 provides:
Application for order under Division
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a Court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a Court having jurisdiction under this Act;
(ii) the Court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the Court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
Note 1: For the orders that a Court may make under this Division see section 118.
Note 2: With a Court's leave, a Court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
Note 3: A Court may make an order under this Division if the Court sets aside a child support agreement under section 136.
(2) An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.
Accordingly, the father’s Initiating Application filed 16 September 2019 is dismissed for want of jurisdiction in the Court, his Application in a Case is also dismissed for want of jurisdiction in the Court, again noting that that Application merely repeats the interim orders sought in the Initiating Application, and the return date for that latter application on 20 April 2020 is vacated.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 29 January 2020
0
8
2