R & B
[2006] FMCAfam 30
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & B | [2006] FMCAfam 30 |
| CHILD SUPPORT – Application for departure from administrative assessment – double payments as result of direct payments – retrospective increases in liability without notice – direction by payee to waive arrears – payer’s bankruptcy – payer’s reduction in income – future child support by lump sum – power with respect to s.72A notices – penalties resulting from Agency maladministration – double payments constitute special circumstances – departure order to reverse double payments. |
| Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 114, 117, 117(2), 117(2)(a)(iii)(A), 117(2)(c)(i), 117(2)(c)(ii), 117(4), 117(5) Child Support (Registration and Collection) Act 1988 (Cth), s.72A |
| Gyselman & Gyselman (1992) FLC 92-279 Savery & Savery (1990) FLC 92-131 Hides & Hatton (1997) FLC 92‑759 |
| Applicant: | IMR |
| Respondent: | TAB (Nee R) |
| File Number: | CAM 1328 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 15 February 2005 |
| Date of Last Submission: | 8 March 2005 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Warwick |
| Solicitors for the Applicant: | David Lardner |
| Counsel for the Respondent: | Mr K Power |
| Solicitors for the Respondent: | McGuiness Eley |
ORDERS
The administrative assessment of child support for the children JAR born May 1988 and RR born January 1991 for the period July 1991 to January 1993 be departed from.
The applicant’s account be credited with the sum of $4,000.
The Child Support Registrar give effect to the departure from administrative assessment in orders (1) and (2).
The stay order of 13 September 2004 on the section 72A notice addressed to the Public Trustee be discharged.
The applicant provide a copy of these orders and the reasons for judgment to the Child Support Registrar.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1328 of 2004
| IMR |
Applicant
And
| TAB (nee R) |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings come before the Court on the application of the father under the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
Background
The parties married in Canberra in December 1987 and separated in about October 1991. They were divorced in February 1996.
There are two children of the marriage, namely, JAR born May 1988 and RR born January 1991.
By occupation the father is a cabler and the mother, at present, is apparently unemployed and has the full time care of the children. There is no evidence on the mother’s circumstances.
In February 1998 the father was formally declared bankrupt.
In December 2003 a grant of probate was issued in relation to the father’s late mother’s estate.
The applications
The father has filed three applications, two on 31 August 2004 and the third in Court on 15 February 2005. At the hearing I raised questions on jurisdiction with both representatives.
The father sought to change his assessment of child support with the Child Support Agency (the Agency) under Part 6A of the Assessment Act. That application was considered incomplete by the Agency and was refused on 14 April 2004. He did not object under s.98X of Part 6B of the Assessment Act. Therefore the Court needs to be satisfied that it has jurisdiction to proceed with the father’s application.
Section 115 of the Assessment Act gives the Court jurisdiction to deal with departure applications. An application can be made direct to the Court for periods ending no later than 30 June 1992. Section 116(1A) provides that a person cannot make an application for periods beginning on or after 1 July 1992 unless an objection under s.98X to the primary decision on a departure application under Part 6A has been lodged and the Registrar has made a decision on the objection.
However, there is an exception in s.116(1B) where there is already an application pending in the Court and it is in the interests of the parties to consider the matters together.
Here the first application filed on 31 August 2004, as amended in Court, covers the 1991/92 financial year. The third application filed in Court on 15 February 2005 covers the subsequent periods. I am satisfied that the Court’s jurisdiction is enlivened under the above provisions and that it would be in the interest of the parties and the children to determine the applications together. The second application of 31 August 2004 headed “Child Support – Application for Departure Order” – essentially duplicated the first and was not pursued.
The applicable law
The obligation to pay child support arises under the Assessment Act. Section 3 creates the duty for parents to maintain their children. The objects of the Assessment Act are to be found in s.4 and must be borne in mind when deciding an application for child support. Section 4(3) recognises the desirability of parents reaching agreement for the financial support of their children.
Particular objects of the Assessment Act are described in s.4(2) as being intended to ensure:
a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support;
b)that the level of financial support to be provided by parents for their children should be determined in accordance with the legislatively fixed standards;
c)that persons who provide ongoing daily care for children should 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;
d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them;
There are additional particular objects in s.114 for Division 4 of Part 7 which deals with departure orders, ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents;
(b) that parents share equitably in the support of their children.
Section 117 empowers a Court to make an order for departure from administrative assessment in special circumstances. Section 117(1) provides:
Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
In Gyselman & Gyselman (1992) FLC 92-279 at 79,064 the Full Court said that in an application for departure the Court must engage in a three-step process:
(a) Whether one or more grounds of departure in s.117(2) is established;
If so:
(b) Whether it is “just and equitable” within the meaning of s.117(4) to make a particular order; and
(c) Whether it is “otherwise proper” within the meaning of s.117(5) to make a particular order.
If these three conditions are satisfied then the Court should make a departure order.
In Savery & Savery (1990) FLC 92-131 Kay J said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.
In Gyselman at 79,065 the Full Court discussed the phrase “special circumstances”:
Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.
Section 117(2) sets out the various grounds for departure. The applicant relies upon the s.117(2)(a)(iii)(A), s.117(2)(c)(i) and s.117(2)(c)(ii) grounds:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
…
(iii)commitments of the parent necessary to enable the parent to support:
(A) himself …;
…
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of either parent or the child; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child;
Section 117(4) of the Assessment Act sets out essential considerations for the second step:
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, earning capacity, property and financial resources of each parent who is a party to the proceedings; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.
Section 117(5) guides the Court in the third step:
In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
It is clear from the Full Court decision in Hides & Hatton (1997) FLC 92‑759 that the three-step process must be followed in respect of each separate assessment for which departure is sought.
The father’s evidence
The father’s evidence was by way of affidavit. There was neither oral evidence nor cross-examination.
The father says that from about February 1990 to about January 1993 when the mother relocated to Sydney and did not advise of her address he paid $100 per fortnight to the mother. He says that at the end of each contact visit he would put the money in the children’s bag. About January 1994 the Agency changed his status from “non-collect” to “collect” and backdated this to 10 February 1990. This he says meant that he made double payments for the period February 1990 to January 1993. The father says that as at January 1994 his arrears of child support were approximately $20. When his status changed to “collect” in about January 1994 his employer started deducting his child support from his salary.
Child support transaction statements annexed to his affidavit of
31 August 2004 record an amount of $181 per month due from July 1990. However, no actual payments were made and child support was discharged on 24 May 1991. The statements also show a balance of nil at 1 January 1992. Child support is again debited from September 2002 with the first payment received in January 1993.
The father contended that on 3 June 1998 without warning the Agency retrospectively amended his liability for the periods 8 July 1992 to
30 June 1996 and 1 July 1997 to 30 April 1998. On 29 May 1998 the father’s child support arrears had been $1,960.71. After the adjustment this liability had increased to $13,100.42, an additional $11,139.71. The Agency then commenced imposing penalties on this new liability.
In a letter dated 19 May 2004 the Agency explained that the father’s liabilities since July 1992 had been incorrectly calculated. For the period 8 July 1992 to 30 June 1996 the Agency incorrectly applied a child support percentage of 13.5% and 10.675% instead of the correct 27% and 21.35% which should have been used to reflect that the mother had the sole care of the children. The Agency stated that the reduced percentage of 21.35% was for the period 11 July 1994 to
1 March 1995 when the father was required to pay child support to a later partner for a third child. This error subsequently resulted in an increase in the father’s liability by $7,761.41.
For the period 1 July 1997 to 30 April 1998 an unknown error caused no liability to be raised on the father’s account. After the error was rectified liability was increased by $3,378.30.
The father says that this constitutes special circumstances because from January 1994 his child support had been paid by employer deduction. He was therefore not aware of the error. He had an understanding that his child support was being paid and that everything was in order. Furthermore shortly after this the Agency commenced imposing penalties on the significantly greater arrears.
On 19 January 1997 the mother signed a direction to the Agency “to clear the arrears that he [the father] owes to me up until January 1997”. The father asserts that this was the result of an agreement between the parties. The father says that this agreement was made because of his financial difficulties and because he had paid child support directly to the mother for some time. The Agency did not give effect to this direction apparently because it was not signed by the father.
On 9 February 1998 the father was declared bankrupt. He did not apply for release from his child support arrears which before the 3 June 1998 retrospective adjustment were almost $1,600. This adjustment increased it considerably as noted above. His car and house were repossessed. He was discharged from bankruptcy on 10 February 2001.
The father contended that from May 1998 until 2005 there were a number of special circumstances. For three years until 10 February 2001 he was an undischarged bankrupt. More significantly from June 1998 when the retrospective adjustment was made considerable penalties accrued, largely because of the significant increase in arrears due to the adjustment. For example, for the four years and four months from July 1998 to the end of October 2002 he was assessed to pay $9,785 in child support. Penalties of $7,060 were imposed. After some adjustments made by the Agency the total payment made by him via his employer was $16,150. He says the penalties regularly exceeded his child support payments.
From about 1 July 1998 to 30 September 1998 and from about November 2002 to July 2003 the father was not working. He was the homemaker and carer for his other children. He also cared for his mother until her death in November 2003.
The father says that since November 2002 he has suffered a reduction in his income and that there have been a number of periods where his employer has not been deducting payments. By this time his liabilities including penalties had increased to about $20,000.
Between September and December 2003 the father worked as a carpet cleaner on a contractual basis but due to a serious repetitive strain injury (RSI) he stopped that work. He experienced a small loss for this work. In about June 2004 the father was offered work by a contractor who was aware of his RSI. He therefore works five hours a day, four days a week. According to his pay slip he earns $400 before tax per week. Only working 20 hours a week has reduced his income.
The father received two distributions totalling $86,125 in September 2004 and October 2004 from his mother’s estate. The trustee has retained $27,060 to cover the child support debt and is subject to a s.72A notice under the Registration and Collection Act.
The father’s wife has a car worth about $5,500 and he drives his father-in-law’s car valued at about $1,500. House contents are worth about $10,000. His caravan is worth about $4,000 and savings he says are $10.
The mother’s evidence
The mother filed an affidavit but was not subject to cross-examination.
In her submissions the mother denied that the father paid her $100 each fortnight in the children’s bag at the end of contact. However, there is no sworn evidence by her on this, nor did she seek to cross-examine the father about it.
In her affidavit she notes that the father is a beneficiary under his mother’s will. She therefore asserts that he has the capacity to meet his child support obligations.
The mother agrees that she signed the 19 January 1997 direction to the Agency to release the father from his arrears. But she states that she did not have legal advice, the father had convinced her that he had significant financial problems, the agreement was conditional on the father meeting all future payments and the Agency did not accept it as a formal waiver of the arrears. She says that he has failed to keep up his payments.
The mother’s affidavit provides no material on her personal or financial circumstances, nor on her employment.
Consideration
The father seeks departure orders for the 13 financial years from 1991/92 to 2003/04 and for the period from 1 July 2004 until the date of the Court’s orders, such that the father’s liability would equal that already paid. In lieu he proposes a lump sum payment to the mother of $8,000. Normal administrative assessment should take place from the date of the orders, with special arrangements for payment.
The mother wants the father to pay all outstanding arrears.
Special circumstances
The first step in the three step process requires the Court to be satisfied that there are special circumstances. The father relies on the following grounds for departure in the special circumstances of this case:
·his capacity to provide financial support for the children has been significantly reduced because of his commitments to support himself (s.117(2)(a)(iii)(A));
·administrative determination has resulted in an unjust and inequitable determination of the level of financial support he has to provide because of his income, earning capacity, property and financial resources (s.117(2)(c)(i));
·administrative determination has resulted in an unjust and inequitable determination of the level of financial support he has to provide because of payments he made to the mother for the benefit of the children (s.117(2)(c)(ii)).
I will follow the submissions of Ms Warwick for the father in dividing the matter into three time periods
·February 1990 to June 1996 noting that the first adjustment by the Agency was from July 1992 to June 1996 (first period)
·July 1996 to April 1998 – the period in which the second adjustment occurred (second period)
·from May 1998 to the present (third period).
First period – February 1990 to June 1996
The special circumstances relied on for the first period are:
·the father paid child support of $100 per fortnight directly to the mother from February 1990 to January 1993
·in January 1994 the Agency started to collect child support and backdated it to February 1990. This means that there were three years of double payment
·the Agency retrospectively increased the father’s liability for July 1992 to June 1996 on 3 June 1998 by $7,761
·from June 1998 the Agency applied penalties to these arrears
·in January 1997 the mother asked the Agency to discharge the arrears, but the Agency did not act on this request.
The evidence before me is limited. I am therefore greatly hampered in making relevant findings of fact.
However, I am satisfied on balance that the father paid $100 per fortnight after contact to the mother from February 1990 to January 1993. His affidavit evidence was not questioned in the mother’s affidavit nor did she choose to cross-examine him on it. She merely challenged it in submissions.
It appears then that there was a double payment for some of the period. I say appears because the child support transaction statement from February 1990 to May 1991 is obscure to say the least, as are later statements. In May 1991 the outstanding child support was discharged. How and by whom is unclear. The first recorded payment was on 25 January 1993.
However, given the range of unexplained transactions recorded in the statement over a number of years, including payments and credit adjustments, I am not prepared to accept the statements as an accurate record of actual transactions.
Rather I accept the father’s evidence that he overpaid by $100 per fortnight for about three years. In round terms this amounts to $8,000.
Does this constitute something that is special or out of the ordinary? In my view it does, especially as the double payment appears on the father’s evidence to have resulted from the Agency backdating in January 1994 the father’s “collect’ status to February 1990. It is a special circumstance resulting in an unjust and inequitable determination within s.117(2)(c)(ii). However, it only applies to the 1991/992 and 1992/93 financial years – ie July 1991 to January 1993, for about $4,000. No departure order is sought for the period from February 1990 to June 1991.
The other bases on which the father relies are essentially maladministration by the Agency – the retrospective adjustment in June 1994 – and the failure of the Agency to give effect to the mother’s direction for the liability to be discharged.
On the evidence before me the applicant has good grounds for complaint about the retrospective adjustment. The Agency did not explain the changes until six years later. For one period it could provide no explanation. The adjustments were applied without warning. The applicant appears to have been unaware of the adjustment at the time and thought he was meeting his commitments. Penalties started to accrue. It would be unjust for the Agency to seek payment of such penalties.
However, I can discern no ground under s.117(2) which includes such maladministration. Nor any which covers the mother’s unimplemented direction.
Only the double payment ground is made out. This is restricted to the period from July 1991 to January 1993.
Second period – July 1996 to April 1998
The special circumstances asserted for the second period are:
·the father was declared bankrupt on 9 February 1998
·the Agency retrospectively increased the father’s liability for July 1997 to April 1998 on 3 June 1998 by $3,378
·in January 1997 the mother asked the Agency to discharge the arrears, but the Agency did not act on this request.
I have already found that no s.117(2) ground covers the retrospective increase and the failure of the Agency to implement the mother’s direction of January 1997.
The father was declared bankrupt in February 1998 and discharged in February 2001. There is no evidence that he was not engaged in full time employment from July 1996 to April 1998, nor that the bankruptcy reduced his earning capacity. The Agency schedule at annexure F of the father’s 31 August 2004 affidavit evidences that his child support assessment was derived from his tax returns.
It is unclear which ground the father relies on in relation to his bankruptcy. There is no ground for bankruptcy in itself. I infer the ground is his income, earning capacity, property and financial resources (s.117(2)(c)(i). But from the evidence I am not satisfied that there are any special circumstances. For part of this period the father was bankrupt. His child support assessment appears to have been based on his income calculated from his tax return. There is no evidence that his bankruptcy reduced his earning capacity or income, or that his disposable income was reduced due to his bankruptcy. The assessment formula did its job.
None of the grounds for the second period are made out.
Third period – May 1998 to the present
The special circumstances relied on for the third period are:
·the father remained a bankrupt until discharged in February 2001
·significant arrears continued to increase, with penalties regularly exceeding child support liability
·the father suffered a reduction in income since November 2002.
For similar reasons to those applying to the second period, I am unconvinced that the bankruptcy has resulted in the necessary special circumstances. Until his discharge from bankruptcy the father’s child support liability was based on his income, as evidenced by his tax returns, except for one two month period. There is no evidence that his bankruptcy reduced his earning capacity or income, or that his disposable income was reduced due to his bankruptcy.
The father did not work for the three months from July to September 1998 and for nine months from November 2002 to July 2003. It appears that for the most of the remainder of the third period he has been employed. However, he has had a reduced income. He had his own business as a carpet cleaner from September to December 2003 from which he made a small loss. In about June 2004 he returned to cabling work but only for 20 hours a week because of RSI. For this he earns about $400 per week before tax.
In the main the father’s child support income set out at annexure F to his 31 August 2004 affidavit reflects these employment changes. There is no evidence before me which would persuade me that the father’s income and financial circumstances were so out of the ordinary or special that I should interfere with the result derived from the administrative formula.
The fact that the father’s arrears continued to increase and penalties regularly exceeded newly incurred liability is not a ground, nor a special circumstance. It is the natural result of the provisions under the Acts.
I am not satisfied that any of the third period grounds are made out.
Just and equitable
I have found that only the double payment ground for the period from July 1991 to January 1993 constitutes special circumstances. This amounts to about $4,000.
Would it be just and equitable to make an departure order to account for this (s.117(1)(b)(ii)(A))?
The father points to:
·the fact that from January 1994 to October 2002 he had generally paid child support by employer deduction, with the exception of three months in 1998 when he was a full time home maker
·the June 1998 adjustments
·his assertion that he contacted the Agency on many occasions
·his preparedness to pay the mother $8,000 in a lump sum and to meet future liabilities
·his bankruptcy
·the mother’s direction in January 1997 to waive the arrears.
The mother essentially asserts that the father has the capacity to meet his obligations. In particular, he is a beneficiary of his mother’s estate to the tune of $113,000, $27,060 of which is subject to a s.72A notice.
Section 117(4) sets out considerations to which I must have regard.
I am aware as Mr Power for the mother submitted that
Not only must the Judge apply the three stage process under s 117(2), (4) and (5) in relation to the parties as they existed in the child support year in question, but also in relation to the present circumstances of the parties (if at all relevant). (Hides & Hatton at (84,355))
Very little evidence has been put to the Court on most of the matters in s.117(4). The father’s income is low. He has very little in the way of assets and financial resources apart from his distribution from his mother’s estate. The mother’s financial circumstances have not been disclosed.
On balance I am satisfied that it would be just and equitable to make a departure to reverse the double payment.
Otherwise proper
Would it be otherwise proper (ss.117(1)(b)(ii)(B) and 117(5))?
I am also satisfied essentially for reasons that I have already given that it is proper to make such an order. It does not conflict in any way with the duty of the parents to support their children.
Future child support
Both parties accept that future child support should be in accordance with the administrative formula. I agree.
However, they propose that the father pay a lump sum into a bank account. The sum would be calculated on estimates until the children reach 18 years - $140 per month until May 2006 and $98 per month thereafter to January 2009. The mother would withdraw these amounts each month.
There is no evidence before me which suggests that I should make such an order. I do not propose to do so.
That does not prevent the parties from entering into a voluntary arrangement if they wish.
Section 72A notices
The father also seeks an order directed to the Child Support Registrar to withdraw all s.72A notices. When I questioned my power to do so, Ms Warwick provided written submissions with alternative proposals.
It seems to me that at least as far as the s.72A notice is concerned she confuses the issue of jurisdiction with that of power. I think her alternatives are also flawed.
All I propose to do is to discharge Federal Magistrate Brewster’s stay of 13 September 2004.
In view of my decision on the double payment and what I say below about penalties, the Agency should consider revoking the s.72A notice and issuing a new one in accordance with my decision and any reconsideration it makes on penalties.
Penalties
At 21 January 2005 the father owed $16,105 in child support and $11,818 in penalties.
It is apparent from the evidence that a significant part of the penalties is due to the 3 June 1998 retrospective adjustments.
As I have stated earlier, on the evidence the applicant has good grounds for complaint about the retrospective adjustments. The Agency did not explain the changes until six years later. For one period it could provide no explanation. The adjustments were applied without warning. The applicant appears to have been unaware of the adjustments at the time and thought he was meeting his commitments. Penalties started to accrue.
In my view it would be unjust for the Agency to seek payment of these penalties. If I had the power I would set them aside. I do not have that power. Maladministration is not a ground for departure.
Mr Power for the mother informed the Court that the Agency had advised him that it would not press for payment of the penalties. Assuming it has that power, it would be appropriate not to pursue payment.
Alternatively, the father might consider whether he has a remedy under the Registration and Collection Act (ss.68 and 95 - 103).
Conclusions
The father has sought departure orders for 14 periods from 1991/92 to the present.
I have found that most matters raised do not fall within the grounds in s.117(2), either because they do not amount to special circumstances or because they do not fall within the specifics of each ground.
However, the double payment ground for the period from July 1991 to January 1993 is in my view a special circumstance. This amounts to about $4,000. I am satisfied that it would be just and equitable and otherwise proper to make a departure to reverse the double payment.
I do not propose to make an order for a lump sum payment into a bank account for future child support. That does not prevent the parties from entering into a voluntary arrangement if they wish.
I am not confident that I have the powers suggested by Ms Warwick with respect to s.72A of the Registration and Collection Act. I do propose to discharge Federal Magistrate Brewster’s stay of 13 September 2004. The Agency should consider revoking the s.72A notice and issuing a new one in accordance with my decision and any reconsideration it makes on penalties.
In my view it would be unjust for the Agency to seek payment of the penalties. If I had the power I would set them aside. I do not have that power. Maladministration is not a ground for departure. Assuming it has the power, it would be appropriate for the Agency not to pursue payment.
I do not believe I should make any order for costs.
The father may wish to consider whether he might have a remedy, under s.153(2A) of the Bankruptcy Act1966, in relation to the retrospective adjustments made on 3 June 1998.
I make the orders set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and one paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 31 January 2006
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