Reid and Sawyer

[2014] FCCA 124

FEDERAL CIRCUIT COURT OF AUSTRALIA

REID & SAWYER [2014] FCCA 124

Catchwords:
CHILD SUPPORT – Determination – application for leave – where applicant applies for leave for the Child Support Registrar to make a determination under Child Support (Assessment) Act 1989 (Cth) s.98S – assessments of child support more than 18 months and less than 7 years old – where respondent did not attend Court.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 112, 116, 118

Federal Circuit Court Rules 2001, r.13.03C

Applicant: MS REID

Respondent: MR SAWYER

File Number: SYC 1023 of 2007

Judgment of: Judge Scarlett

Hearing date: 28 January 2014

Date of Last Submission: 28 January 2014

Delivered at: Sydney

Delivered on: 28 January 2014

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. As provided by section 112 of the Child Support (Assessment) Act 1989, leave is granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to assessments of child support payable by the Applicant to the Respondent for the children [X] born [in] 1999 and [Y] born [in] 2001 for the child support period from 1 December 2010 to the current child support period.

IT IS NOTED that publication of this judgment under the pseudonym Reid & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1023 of 2007

MS REID

Applicant

And

MR SAWYER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of two boys aged 14 and 12 years for leave under s.112 of the Child Support (Assessment) Act 1989 (Cth) for the Child Support Registrar to make a determination under s.98S of the Act in relation to assessments of child support for the period from 1 December 2010 to the current child support period.

2. The reason for the application is that the parties’ elder son required specialist dental procedure from an orthodontist over a period of two and a half years, commencing in September 2010. The Applicant has deposed in her affidavit in support of the Application that she was unaware that she could make this application until she was advised by her Child Support Case Officer.

Evidence

1. The Applicant relied on her affidavit of 16^th October 2013 in support of her Application. She also tendered a copy of a Decision Regarding Change of Assessment from the Department of Human Services dated 23^rd December 2013.

2. The Applicant gave short oral evidence.

3. Although the Respondent had been served, he did not attend Court. He did not file a Response or any affidavit.

4. The decision was made to proceed with the hearing generally under the provisions of Rule 13.03C.

The Relevant Sections of the Child Support (Assessment) Act 1989

1. Subsection 98S of the Child Support (Assessment) Act 1989 allows the Child Support Registrar to make various determinations, including:

   a)varying the rate of child support payable by the liable parent;

   b)varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent; or

   c)varying the child support income amount or disregarded income amount of the carer entitled to child support.

2. However, subsections 3B and 3C place a time limit placed on the Registrar’s power to make any of the determinations in subsection (1):

   (3B)The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 Months earlier than:

   (a)the day on which the application for the determination is made under section 98B; or

   (b)the day on which the Registrar notifies the relevant parties under subsection 98M(1);

   if a court has granted leave under section 112 for the determination to be made.

   (3C)If a court has granted leave under section 112, the Registrar may only make a determination under this Part I 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. Subsection 111(1) of the Act entitles parties to apply for amendment of an administrative assessment that is more than 18 months old:

   (1)Parent or carer applications  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:

   (a)the Registrar to make a determination under section 98S; or

   (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.

4. Importantly, section 112 empowers the Court to grant leave for either the Registrar to make a determination under section 98S or the Court to make an order under section 118 “irrespective of what the applicant applied for under section 111”. 

5. Subsection 112(4) sets out the matters to be considered:

   Matters to be considered   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

   (ii)    making a determination under section 98S;

   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.

6. The Court may also have regard to any other relevant matter (s.112(5)).

7. The granting of leave under subsection (1) does not imply that the Registrar is required to make a determination under s.98S or that the Court is required to make an order under section 118.

Conclusions  

1. The Applicant has provided an explanation for the delay in bringing her application, which is that she was unaware that she could apply until informed by her Case Officer. The Notice of Decision which she tendered in evidence supports her case.

2. The Notice of Decision shows that the Applicant applied to vary the assessment on 10^th September 2013, on the following grounds:

   a)The costs of maintaining the parties’ older child  are significantly affected by the child’s special needs; and

   b)The child support assessment is unfair because of one party’s income, property and financial resources.

3. The Senior Case Officer noted that the Applicant had raised the issue of the child’s orthodontic expenses which go back to 2010. The Senior Case Officer found both reasons established.

4. In respect of the child’s special needs, the Senior Case Officer stated that:

   (the child) has had orthodontic treatment at a cost of $6900. However, as stated above I can only consider the costs incurred within the last 18 months of the application being lodged. The costs incurred during that 18 month period total $2,352. I am satisfied that this treatment occurred and that the costs are significant and affect Ms Reid’s ability to support the children. These costs make the assessment unfair to Ms Reid and the children and give rise to special circumstances.[1]

   [1] Notice of Decision page 3

5. In my view, the Applicant has shown that she would suffer hardship if leave were not granted, because she would not be able to have a significant proportion of the orthodontic expenses taken into account when considering the proper assessment of child support for the child support period in which the expenses were incurred.

6. I am not satisfied that the Respondent would suffer any particular hardship if leave were to be granted. He has not filed any affidavit claiming any hardship, nor has he attended Court.

7. It is the case that, if leave were to be granted, the Child Support Registrar would not be bound to make a determination. In any event, the Respondent would have the opportunity to put to the Registrar reasons why a further determination should not be made.

8. I propose to grant the Application and make the Order sought.    

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  29 January 2014