Reid v Reid
[1999] FamCA 699
•2 March 1999
[1999] FamCA 699
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE Appeal No. SA 29L of 1998
File No. ML 12180 of 1996
IN THE MATTER OF:
CHRISTOPHER MICHAEL SUTHERLAND REID
Appellant Husband
- and -
SUSAN REID
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: Nicholson C.J., Ellis and Steele JJ.
DATE OF HEARING: 2 March 1999
DATE OF JUDGMENT: 2 March 1999
APPEARANCES:
Mr. C. M. Reid of 2/53 First Street BLACK ROCK VIC 3193 appeared in person.
Mr. Connolly of Counsel instructed by Marshalls and Dent Solicitors, Level 12, 459 Little Collins Street, MELBOURNE VIC 3000) appeared on behalf of the respondent wife.
Name of Appeal Reid and Reid
Appeal Number SA 29L of 1998
Date of Appeal Hearing 2 March 1999
Date of Judgment 2 March 1999
Coram Nicholson CJ, Ellis and Steele JJ
Catchwords: Child Support - Application for departure from Administrative Assessment - Jurisdiction of Trial Judge - Jurisdiction incorrectly assumed and exercised - paras 115(b) and (c) Child Support Assessment Act 1989.
Child Support - Application for departure from Administrative Assessment - Refusal by Review Officer to make a determination notified by Deputy Child Support Registrar - Power of Registrar to delegate power and functions - Whether Review Officer was in fact a delegate of Registrar - ss 98A, 98EA, 149, and 149(1A) Child Support Assessment Act 1989
The husband applied for leave to appeal and, if leave was granted, to appeal against the orders of Kay J made on 16 April 1998 granting a departure from administrative assessment. The primary attack was that the orders were made without jurisdiction and it was on that issue only that the Full Court heard argument.
There was a child support assessment made by the Child Support Agency in respect of the period from 11 December 1997 to 30 June 1998. This was objected to by the wife who filed a Form 63 on 9 January 1998 seeking a departure order that the administrative assessment be increased so that the husband paid to the wife child support for the child in the sum of 1263.99 per week. The assessment that had been made was for a much lesser sum.
The next step in the matter appeared to have been taken by the husband who made an application for a review of the child support assessment, the application being dated 27 January 1998. In that application, he sought that the annual rate of child support be reduced to $3000 per year.
When the matter came before Kay J on 30 January 1998, counsel for the wife submitted that his Honour had jurisdiction to hear the application notwithstanding that there had been no determination by a Review Officer because there were residence and contact proceedings remaining before the Court and that the case fell within s 115(c) of the Child Support Assessment Act 1989. That paragraph permits a court to hear an application where an application is pending in a court and the court is satisfied it is in the interest of the carer and the parent to consider a departure application at the same time as it hears the other application. That provision is an exception to the legislative expectation that departure applications should be dealt with by administrative review. In fact the only proceeding then before the Court was a Form 7 and there was no question of that being heard at the same time as the review application.
Counsel for the wife also foreshadowed that there might well be a further proceeding issued by the husband in relation to the child. The husband submitted he would prefer the child support matter put before a Review Officer and objected to his Honour hearing the matter.
His Honour found that he had jurisdiction, adjourned the further hearing until 16 April 1998, and made orders giving leave to the husband to make an oral application for a departure order for the period 11 December 1997 to 30 June 2000 subject to the filing of a Form 63 within 21 days. He gave leave to the wife to amend her Form 63 to seek a departure order until 30 June 2000.
A departure application of the husband came on for hearing before a Review Officer on 18 March 1998 who refused to make a determination pursuant to s 98EA Child Support Assessment Act 1989 on the basis that the claim required court adjudication. The precise nature of this departure application was unclear on the material. The Review Officer’s reasons indicated that it was neither feasible nor practical to analyse the material associated with the claim and that it would be inappropriate to attempt to do so given the proceedings listed for 16 April 1998. The Review Officer’s statement of reasons and decision was formally advised to the husband under cover of a letter by the Deputy Child Support Registrar which referred to the fact that the Review Officer’s decision was final. Section 115(b) provides jurisdiction to a court where the Registrar has made or refused to make an administrative determination to depart from the assessment.
Those documents do not appear to have been put before the trial Judge on 16 April 1998. On that date, his Honour was told by Counsel for the wife that the Review Officer had refused the husband’s application. His Honour then proceeded to hear and determine the wife’s departure application. By this time the husband had issued a Form 8 in relation to the residence of the child which he sought to have heard with his application but his Honour declined to do so.
Held: (per curiam) Leave to appeal allowed; appeal allowed with costs.
The husband was perfectly entitled to and did object to his Honour assuming jurisdiction on 30 January 1998. The trial Judge did not have jurisdiction under s115(c) because the only matter pending at the time in the Court was a Form 7 application which could not be dealt with at the some time.
An argument on appeal that his Honour had jurisdiction under s115(b) was unnecessary to decide because he had wrongly assumed jurisdiction under s115(c). No such question arose at trial, the Review Officer’s decision did not appear to be before the trial Judge and it was quite clear that his Honour did not regard it as relevant to the issues before him because he had assumed jurisdiction on another basis. Further, it would be a curious result that a Review Officer’s refusal to deal with the matter on the basis that it was before the Court could, of itself, operate to give the Court jurisdiction.
The Full Court noted that part 6A of the Child Support Assessment Act 1989 provides for the administrative decision as to departure applications to be made by the Registrar of Child Support. Section 149 permits the Registrar to delegate all or any powers or functions. The Review Officer did not purport to sign the review as a delegate of the Registrar and nor did the Deputy Child Support Registrar purport to give any decision in the matter. There was no evidence placed before the trial Judge as to whether the Review Officer was authorised to make a decision as a delegate of the Registrar and it is not open to assume such a delegation in the absence of any evidence of such a delegation. However, the argument that the decision of the Review Officer was a nullity because the Review Officer had no jurisdiction was unnecessary to deal with in the circumstances of the case.
The husband should receive his costs of and incidental to the appeal. He was consistent in taking the objection to jurisdiction and consistently sought to have the matter determined by a Review Officer. It was the wife’s application that triggered the proceedings which, in effect, endeavoured to shut out the review procedure.
Reportable
NICHOLSON CJ:
In this matter the husband has applied for leave to appeal and seeks to appeal against the orders of Kay J made on 16 April 1998. On that date his Honour ordered:
"(1)That there be a departure from administrative assessment of Child Support payable by Christopher Michael Reid in respect of the child Michael James Reid born the 27 May 1998, in that the Child Support payable as and from the 1 July 1998 until 30 June 2000 be fixed at the rate of One Hundred and Sixty Dollars ($160.00) per week.
(2)That the Form 63 filed by the Applicant Wife on the 9 January 1998 and the Form 63 filed by the Husband on the 17 February 1998 be otherwise dismissed." (Appeal Book page 21)
There was a further order that the husband pay certain costs in relation to subpoenas.
The primary attack made by the husband upon his Honour's orders is that they were made without jurisdiction and it is on that issue only that we have heard argument at this stage.
The history of the matter is that there was a child support assessment made by the Child Support Agency in respect of the period from 11 December 1997 to 30 June 1998. This was objected to by the wife who filed a Form 63 on 9 January 1998 seeking a departure order and that the current administrative assessment that had then been made should be increased. She sought that the husband should pay to the wife child support for the child in the sum of 1263.99 per week.
The assessment that had been made was a much lesser sum and in fact by a letter written on 11 December 1997 the Child Support Agency informed the wife that she had been overpaid a sum of $1931.22 child support. The assessment for the period 1 July 1997 to 30 June 1998 made on 11 December 1997 provided for a monthly amount of child support of $628.42.
The first step in the proceedings was the wife's Form 63 of 9 January 1998 to which I have referred. The next step in the matter appears to have been taken by the husband who made an application for a review of the child support assessment, the application being dated 27 January 1998. In that application, he sought that the annual rate of child support be reduced to $3000 per year.
The matter came before Kay J on 30 January 1998. On that occasion Ms Molyneux QC appeared for the wife and the husband, who has legal qualifications but is currently not admitted to practice as I understand it and is doing his articles, appeared on his own behalf.
Ms Molyneux indicated to his Honour what the case was about and his Honour asked what period is the application meant to deal with. She replied:
"the current financial year…Starting from 11 December 1997 to 30 June 1998". (Appeal Book page 199)
His Honour then asked (Appeal Book page 200):
"Well where is the review officer's determination of the issue?"
Ms Molyneux said:
"There has been no decision or review".
His Honour then said:
"Well, and why have I got jurisdiction to entertain the application?"
Ms Molyneux answered:
"Because, your Honour, at the time that the application was made there were before the Court and there still remains proceedings in relation to the child, more particularly in relation to residence and contact of the child of the marriage and there was an issue arising as a result of the filing of a form 8 application before the Court last week in relation to the child, Michael. So, your Honour, depending on where we are in the list that is a matter that is before the Court and it is - - - "
His Honour said:
"But that's not the test, is it? The Court is satisfied- it is the interests of the care and …to consider at the same time but his - the application pending in the -another application - - - "
His Honour then went on (and the transcript is somewhat disjointed) and said:
"So it (meaning the other application) has got to be made at the same time that here is something else, does it not?"
Ms Molyneux said:
"Your Honour, it would certainly appear to be the case but we would submit that your Honour should hear it in the circumstances of this particular case because while there was an issue in relation to the child, Michael, last week before the Court and it would appear that there may well be a further proceedings issued - not by the wife at this stage, but possibly by the husband - in relation to the child, Michael. The difficulty is actually having the two matters heard at the same time in a particular list. So that in terms of co-ordinating the two applications, we would say that we come within that section as far as the Court is concerned; that there are proceedings and that we would ask- - -”
His Honour said:
"Sorry, are there still proceedings relating to the child alive in the Court?"
Ms Molyneux said:
"Yes, there are, your Honour".
His Honour said:
"It will require some elasticity to the interpretation of the phrase at the same time".
So his Honour was, quite clearly, indicating some concern about jurisdiction at that point.
I should mention that it appears there were Form 7 proceedings before the Court in relation to residence and contact of the child, Michael, and that the Form 8 application that was referred to in that passage, was an application in relation to holiday contact between the husband and the child that had, in fact, been dealt with.
Ms Molyneux, however, was foreshadowing that there might well be a further proceeding issued by the husband in relation to the child and in fact it subsequently appeared that before the matter next came before the Court, the husband issued a Form 8 proceeding in relation to residence for the child which he sought to have heard at the same time as the Form 63 application which he had then filed.
Returning to the hearing before Kay J, at this stage after the interchange with Ms Molyneux, his Honour asked the husband to make submissions. He commenced (at Appeal Book page 201):
"If your Honour pleases, there are several matters I would like to cover. I certainly note your Honour's comments about the provisions of the Act in relation to the hearing of matters concurrently. At this stage, there are no applications outstanding before this Court other than the application for final orders which will ultimately be resolved and have not yet been listed. It is a matter of conjecture whether any further form 8 applications will come before the Court; that is, counsel has indicated that I may- - -"
Then his Honour interrupted:
"Mr Reid, we can go through the absurd process, now that you are already in the room, of saying I am not going to hear you today. Go to a review officer. Then you will be obliged to attend upon a review officer, spend several hours of your time collating information to give to the review officer."
Mr Reid said:
"I would prefer that alternative, your Honour, because I believe that this matter is better handled in conjunction with my application - it is better handled with my application - - - "
His Honour said (at Appeal Book page 202):
"Whose application to review?"
The husband indicated that he had an application for review before the Child Support Review Office.
His Honour said:
"Do you want to pay some more, what?"
Mr Reid answered:
"No, your Honour, the issue is one of my wife's income".
Some discussion then ensued about whether Mr Reid wanted to pay more or less and the husband said:
"I want the review office to make a determination in relation to the financial resources of my wife and that's the nature of the application. I refer to it in my affidavit."
His Honour questioned the purpose of going to the Review Office. The husband said:
"Because my wife's taxable income as disclosed in the tax return does not represent, in my submission, your Honour, her true income".
His Honour then asked:
"Do you want to pay more than 144 less or do you just want the world to know that her income is higher than her taxable income? What is it?"
Mr Reid said:
"If my position is upheld by the review office, your Honour, it will be I will pay this money.”
His Honour said:
"So you want to pay less money than $144 a week, is that it?"
Mr Reid said:
"I merely wish to have this matter heard together - it is a matter of contribution on the part of my wife- - -"
His Honour said (at Appeal Book page 203):
"Well, I can hear all of these issues in the one hearing".
Then Mr Reid pointed out that his Form 63 application had been withdrawn. His Honour then said he would take an oral application for a reduction in the sum. Mr Reid reiterated:
"I would prefer, your Honour, that this matter be handled by the review office which I believe at this point in time will give me more time to prepare for the matter to be - - -".
His Honour referred to the fact that Mr Reid had been on notice since 9 January. Mr Reid said:
"Unfortunately, your Honour, there have been a number of - well, fairly soon after that date there have been a number of other matters, there has been a form 8 application which I was required to make in order to secure half holiday residence with my - - -"
His Honour then interrupted:
"Well, on the assumption that I am willing to proceed with the application for a departure order what do you then want to do?"
Mr Reid said:
"Well, your Honour, I - - "
Then his Honour said
"And I am prepared to give you leave, subject to Ms Molyneux advising me, to make an oral application for a reduction. Because once she says I want it increased then I will have to examine her financial position and your financial position. And if I then conclude that you are paying too much and you telling me you are paying too much, and that it is just and equitable that you pay less, I am quite happy, subject to Ms Molyneux telling me I should not, to be able to cope with that issue."
Mr Reid then referred to the issues being "fairly complex". Then further discussion ensued and Mr Reid indicated that he needed further time to prepare his case. His Honour asked how long he would need. Mr Reid said he needed 21 days. His Honour said (at Appeal Book page 204):
"In 21 days you will be ready to run your case, is that the position?"
Mr Reid said:
"I will, your Honour".
Then discussion ensued about the wife having some money in the bank. His Honour then said (at Appeal Book page 205):
"Good, the next available date in the child support list for the hearing of this matter is likely to be 16 April. Are you in a position to hear a case on 16 April?"
Ms Molyneux and Mr Reid indicated they were available and costs were reserved.
His Honour then made orders giving leave to the husband to make an oral application for a departure order for the period 11 December 1997 to 30 June 2000 subject to filing a Form 63 within 21 days. He gave leave to the wife to amend the Form 63 to seek a departure order until 30 June 2000. He adjourned all applications to the child support list on 16 April and gave directions in relation to affidavits.
In my view it is quite clear that at that stage his Honour had determined to assume jurisdiction in the matter, despite the fact that he was aware that a review application was pending, and that the husband wished to proceed with that review before the matter went any further.
It is necessary, at this point, to refer to section 115 of the Child Support Assessment Act and, in particular, to the terms of paragraphs (b) and (c) of that section. The section commences:
"This division applies to the administrative assessment of Child support in relation to a child in the following cases:"
Paragraphs (b)and (c) provide:
"(b)where the child support is for a period beginning on or after 1 July 1992 and the Registrar, has on application made under section 98B, either made or refused to make a determination under Part 6A in relation to the child; or
(c)where the child support is for a period beginning on or after 1 July 1992; and
(i)the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and
(ii)the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to the child and the special circumstances of the case."
In my view, it is quite clear that his Honour had no jurisdiction to proceed under section 115(b) at that stage and, in my view, he clearly had no jurisdiction to proceed under section 115(c) either.
The only matter pending at that time in the Court was a Form 7 application which would not be dealt with for some time, the Form 8 application lodged by the husband having been disposed of prior to his Honour making the decision.
It seems that his Honour was aware of the possible jurisdictional difficulty, but no doubt, with what he thought was a means of short circuiting various procedural requirements, thought it better that the matter should proceed.
The fact is, however, that he had a very clear objection to jurisdiction that had been made by the husband, who had given a very clear indication that he wanted the matter to proceed before the Review Officer before it came to the Court.
It is perhaps desirable, at this stage, to make reference to Part 6A of the Child Support Assessment Act, commencing at section 98A and continuing through to 98M. Section 98A, was inserted by Act No. 13 of 1992. Sub-section (1) provides that:
"The object of this Part is, subject to subsection (2,) to give power to the Registrar to make a determination having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to a child. "
It thereafter sets out a scheme for an administrative review of what might be termed the formula assessment of child support. It enables applications to be made in a summary way and dealt with informally without representation by counsel. This particular Part was inserted into the legislation to correct a deficiency which then existed in that the only way that a departure from administrative assessment could be achieved was by application to the Court, with its associated expense and difficulty.
It is quite clear, in my view, that the intention of the Legislature was that this Part was to provide a summary and inexpensive procedure to enable child support departure orders to be made, without the necessity for protracted Court proceedings.
The wife, in this case, chose by the filing of a Form 63 to effectively ignore the provisions of Part 6A, and to proceed to make a departure application to the Court. The husband, in my view, was perfectly entitled to take the view that this measure had been inserted into the Act to enable these matters to be resolved without the necessity for expensive litigation. It is also quite clear that that was the view also taken by the legislature, when it enacted section 115, which was also substituted by Act No. 151 of 1992, and subsequently amended in 1995.
The intention of the legislature was that the departure order would normally only be dealt with in circumstances described under section 115(b) - where there had been either the making or refusal of a determination by the Registrar under part 6A. Section 115(c) was, however, introduced with the very sensible object of enabling the Court, in special circumstances, to deal with a departure application at the same time as other litigation already before the Court.
In this case, as at 30 January 1998, it is quite clear that there was no other matter before the Court, other than the Form 7, which certainly would not have been dealt with together with this application. His Honour therefore, at that stage, had no jurisdiction to entertain the matter.
The events that followed to some extent obscured this clear situation in that it appears that the departure application of the husband came on for hearing before a Review Officer on 18 March 1998. The document which purports to be signed by a Review Officer, is headed as follows:
"REFUSAL TO MAKE A DETERMINATION
(SECTION 98EA)"
The parties are named. Under "attendances", it is indicated that the applicant attended the hearing.
A letter was received from the respondent's legal advisors objecting to the jurisdiction of the Review Officer. She did not participate in the hearing.
It is not necessary for me to deal with the full substance of the Review Officer's reasons, but it is relevant to perhaps consider the last few paragraphs of them, beginning with the second last paragraph on page 2:
"The other parent's legal practitioners advised the review office that Mr Reid has lodged an application at the Family Court seeking departure from the current assessment. They submit that while his application remains on foot, there is no basis for the Review Office to proceed with a concurrent claim.
Mr Reid retorts that the Family Court wrongly assumed originating jurisdiction in Mrs Reid's application for a court departure. He believes the Court has no authority to determine that matter without a preliminary finding by the Review Office.
He explained that he has lodged his own application for court departure to protect his interests, pending the outcome of this review.
Taxation records show that Mr Reid's assessable income exceeded $100,000 over the past four financial years. That amount is expected to fall significantly during 1997/8, in view of his current employment as an article clerk."
Then a passage appears under the heading "REASONS FOR THE DECISION". It reads:
"The review process is intended to consider cases which are capable of resolution without the need of lengthy documentation, cross-examination, witness evidence, or legal representation.
The legislation requires the Review Office to refuse to make any determination in circumstances where a claim requires court adjudication.
In my view, this is such a claim. Proceedings are currently before the Court, due for imminent hearing (late next month). It is neither feasible nor practical for me to analyse the material within the limited time span and resources available for review.
Nor is it appropriate that I attempt to do so, since I will be second guessing the outcome of court proceedings next month.
Mr Reid suggested I should adjourn these proceedings, pending the outcome of the Family Court claim. His concern is to ensure that he is not prejudiced by delay, in the event the Court accepts his submission that it lacks jurisdiction to proceed with the departure applications.
In that event, I suggest he contacts the Director of the Review Office.
The formal decision is recorded below.
DECISION:
· A determination is refused pursuant to Section 98EA of the Act, since the claim raises complex issues of fact and law requiring court adjudication."
Then appears the signature of a Review Officer, which appears to be that of Ruth Seagal; the date is 18 March 1998.
That statement of reasons was accompanied by a letter from the Deputy Child Support Registrar to each of the parties which again I propose to set out in full.
It is headed as follows:
"DEPARTURE FROM CHILD SUPPORT ASSESSMENT
NOTICE OF DECISION"
It is on the letterhead of the Australian Taxation Office, Child Support Agency, and it reads:
"We are writing to advise you that the application for a departure of your child support assessment has been finalised. After consideration of the facts presented in relation to this application, the Review Officer has made a decision.
Your copy of the notice of decision setting out the Review Officer's findings is attached.
The Review Officer's decision is final and is not subject to appeal through the departure from assessment team. However, if you wish to pursue this matter, then your case should be taken to the Family Court.
You may lodge a new application for departure only if different circumstances to those already considered by the Review Officer apply.
A copy of this Decision will be sent to the other party and to the Child Support Agency for variation of your child support assessment if applicable.
Yours faithfully,
Cathie Argall, Deputy Child Support Registrar
Encl."
There are several aspects of those documents which are, I believe, worthy of comment.
Firstly, it does not appear that the documents were placed before his Honour at the eventual hearing of the matter on 16 April 1998.
Secondly, the documents do not purport to be a decision of the Registrar but a decision of a Review Officer and the Deputy Registrar in her letter refers to the fact that the Review Officer's decision is final.
If one examines part 6A of the Child Support Assessment Act, it provides for the decision to be made by the Registrar of Child Support. It also appears, however, pursuant to section 149 of the Act that the Registrar may, in writing, delegate all or any of the Registrar's powers or functions under this Act a number of persons including a Deputy Registrar. Subsection 149(1A) provides:
"Without limiting the generality of subsection (1), the Registrar may also, in writing, delegate all or any of the Registrar's powers or functions to a person engaged by the Registrar for the purposes of Part 6A."
The Review Officer does not purport to sign the review as a delegate of the Child Support Registrar, and neither does the Deputy Child Support Registrar purport to give any decision at all in the matter; she simply conveys the nature of the Review Officer's findings.
This circumstance therefore, raises the issue as to whether there was, in fact, any delegation of the power pursuant to section 149.
In the particular circumstances of this case, for reasons that I will come to, I consider that to be significant.
The matter came before his Honour again, as I have indicated, on 16 April 1998. On that occasion Ms Molyneux again appeared for the wife and the husband appeared in person. There were some preliminary discussions about evidentiary matters involving a subpoena to a witness and then the matter commenced. His Honour commenced by saying to Ms Molyneux (at Appeal Book page 222):
"Now, what is before the court, form 63 of your client, is it?
Ms Molyneux said (at Appeal Book page 223):
"Yes, that is correct, your Honour. And I should say, your Honour, that that application was issued by the wife on 9 January."
His Honour then referred to identifying the relevant documents including an affidavit by the wife and a statement of financial circumstances. His Honour then said:
"Yes, Mr Reid. What is it that you are relying on?"
Mr Reid said:
"Your Honour, I filed a form 63 application 17 February."
His Honour replied that he had that document.
Mr Reid then referred to having filed his affidavit in support of his Form 63 and Form 17. Mr Reid said (at Appeal Book page 234):
"Your Honour, may I make further submissions to the court?"
His Honour said:
"About what?"
Mr Reid said:
"There is at this point in time a further matter that is before the court in relation to residence. My understanding is, your Honour, that you wish to make a departure order for a two year period."
There was some further discussion. His Honour said:
"I did not wish to make any order about anything. I granted leave to amend - to seek an order that deals with two years - three years - two and a half years."
Mr Reid said:
"There was a form 8 application before the court, your Honour. Because the child support issue and residence are fairly closely aligned in terms of the actual final assessment of the amount of child support payable is very much in line with the period of residence that the child---
His Honour said:
"If there is any change in the residence in the future you can vary the child support agreement - order if I make one. But at the moment I will proceed on the basis that the child is residing with the wife, and if such were the changes then you can make application."
Mr Reid said:
"The application is due for hearing on 29 April."
There was some discussion about whether the application due for hearing on 29 April was in the duty list or otherwise and Mr Reid confirmed that it was the first return date of a Form 8. His Honour made some remarks, in substance to the effect that it may be a long time before the matter was heard. Mr Reid said (at Appeal Book page 225):
"Well, your Honour, I was hoping that we might be able to get the whole thing wrapped up in one fell swoop, because it would simplify matters considerably."
His Honour said:
"It cannot be done, unfortunately, I will deal with the child support issue in the meantime, and as I say, if anything happens to change the basis upon which I proceed then that could allow you to make another application."
His Honour then asked Ms Molyneux what the application was and she referred to what was sought and the current assessment. His Honour then said:
"Has this been to a review officer?"
Ms Molyneux said:
"Yes, your Honour. What occurred is that that assessment was made upon an application made by the husband to the child support agency in December of last year."
His Honour said:
"It looks like it was made on a section 60 application."
Ms Molyneux replied:
"That is probably right, yes, your Honour."
His Honour then asked:
"Has it been to a review officer since then?"
Ms Molyneux answered (at Appeal Book page 226):
"Then the husband went to a review. On 18 March this year there was a hearing. Following the husband's application, a fresh application made to the agency on 2 February this year, the - - -".
His Honour said:
"You have lost me. I have a - sit down Mr Reid. You will have your chance to talk when it is your turn, okay, which is not this at this moment. I have before me, attached to Mr Reid's affidavit - financial statement, the document which you should have filed, namely the current- the assessment you are seeking to have departed from?"
Ms Molyneux replied:
"Yes."
His Honour asked:
"It is dated 11 December 1997?"
Ms Molyneux:
"That is right, yes, your Honour."
His Honour asked:
"Now, when was there a review in respect of that assessment?"
Ms Molyneux:
"Your Honour, as to when the review took place, the review took place - I know there was a review on 18 March, your Honour, this year. But my reading of the review officer's decision is that it was in relation to an application made by the husband on 2 February this year. So, in relation to the assessment of December of 1997 that has not been reviewed. What occurred, your Honour, is that as a result of that the wife filed her application under section - a form 63 application in this court on 9 January."
His Honour said:
"She cannot."
Ms Molyneux said:
"Well, your Honour the wife did that on the basis that there were pending proceedings before this court. It came before your Honour on 30 January this year."
His Honour asked:
"What were the pending proceedings?"
Ms Molyneux replied:
"There are pending proceedings in relation to the child, Michael".
His Honour said:
"What were the pending proceedings as at - fascinating. According to the order it was made on a non- existent date, 30 February---"
Ms Molyneux said:
"Yes, your Honour it should be January. Your Honour at that stage was satisfied that under ---"
His Honour asked (at Appeal Book 227):
"Section 115 is it?"
Ms Molyneux said:
"Exactly, your Honour, that there were pending proceedings and the husband on that particular occasion foreshadowed that he would be seeking a further variation on the current assessment. If I recall it correctly---"
His Honour asked:
"What else was pending as at 30 January?"
Ms Molyneux replied:
"The contact and residence of the child, Michael."
His Honour said:
"Form 7,document 33."
Ms Molyneux said:
"Yes."
His Honour said:
"One moment, residence and contact issues before the court, okay. "
Ms Molyneux said:
"Yes, thank you, your Honour. And just to complete the history, your Honour, not that it will be a complete history but a part of it I should say. In January this year it came back in the pre-trial, the issue of - there was an issue relating to the child, Michael, before Judicial Registrar Nikakis, and part of his judgment was that orders that had been made by him in February of 1997 only ran through to the commencement of the academic year in 1998."
Following some discussion his Honour said:
""Let us move back to the focus on the child support side."
That seemed to be the end of the discussion at that stage. A further discussion of a somewhat confusing nature ensued about the withdrawal or otherwise of the husband's Form 63, but I do not think it is necessary for the purposes of this aspect of my decision to deal with it.
What seems to be fairly clear is that his Honour was still continuing to deal with the matter as if he had jurisdiction under section 115(c) because there were other pending proceedings in the court. As I have said, I do not believe that that is an accurate or a correct approach to the interpretation of section 115(c) which envisages that in special circumstances a departure application may be dealt with at the same time as another application.
In fact a request was made to his Honour to deal with another application at the same time by the husband, but his Honour refused to do so. His Honour does not seem to have given or paid any regard to the significance of that refusal. In the course of his reasons for judgment his Honour said (at Appeal Book pages 24 and 25):
"The child support income amount estimated to be taxable income from the husband was $50,900. This lead to an assessment in the monthly amount of $628.42 or a weekly amount of about $144 per week. It is from this assessment that the mother seeks to have a departure order made. As the parties were litigating here on other matters I having [sic] directed that this matter proceed notwithstanding that a Review Officer had not dealt with the issue. I also directed that I would look at not only the remaining few months of the 1998 child support year but deal with an application that would take this family up to 30 June in the year 2000."
His Honour then continued with the rest of his judgment and it is quite clear that his Honour was purporting to exercise jurisdiction under section 115(c) of the Act.
When the matter came before us today, however, the argument advanced by Mr Connolly for the wife was that although the situation under section 115(c) might present him with some difficulties, the fact was that the Review Officer had made a decision in the matter on 18 March on the application of the husband and that, therefore, his Honour had jurisdiction pursuant to section 115(b) of the Act because the matter had been dealt with.
This, on the face of it, produces a somewhat extraordinary situation because a substantial aspect of the Review Officer's reasons for refusing to deal with the matter was the fact that the matter was already before this Court.
If the reality was that it was before this Court in circumstances where there was no jurisdiction in this Court to make an order it seems a somewhat curious result that a Review Officer's refusal to deal with the matter upon the basis that it was before the Court could, of itself, operate to give the Court jurisdiction. Be that as it may, however, it is not, in my view, necessary to decide that issue today. It is quite clear that Mr Reid had raised the question of jurisdiction with his Honour, and it is quite clear that his Honour considered the question of jurisdiction.
In my view his Honour wrongly assumed jurisdiction under section 115(c). Because that occurred, no issue or question arose at the trial before his Honour as to whether there was any jurisdiction under section 115(b). In fact the Review Officer's decision, as I have said, does not appear to have been before his Honour. His Honour therefore paid no regard to it in arriving at his own decision, not that he is necessarily required to do so, but it is quite clear that his Honour did not regard it as relevant to the issues before him because he had assumed jurisdiction on another basis.
Similarly, no evidence was placed before his Honour as to whether the Review Officer was authorised to make a decision as a delegate of the Registrar pursuant to the relevant provisions of the Act. In my view it is simply not good enough to assume that there was such a delegation. Section 149 requires a delegation in writing to the particular person and in the absence of any evidence of such delegation it seems to me that we are not entitled to assume that such a delegation had occurred. The document itself does not purport to be signed by the Review Officer as a delegate of the Registrar and nowhere in the decision does there appear any material that suggests that any delegation had occurred as required by the Act.
The matter, in any event, was not before his Honour and, as I have said, his Honour assumed jurisdiction on what I regard as an improper basis. I am satisfied that the Court had no jurisdiction to deal with this matter in the circumstances and on the material before it. I therefore consider that his Honour's orders should be set aside. I would ask that Ellis J deliver the second judgment.
ELLIS J:
I agree with the reasons of the Chief Justice. I am of the view that it has not been established that the trial Judge had jurisdiction, he having relied incorrectly in the circumstances on the provisions of s.115(c) of the Child Support (Assessment) Act. In addition, I am satisfied that there was no evidence either before the trial Judge or before this Court (there was no application before this Court for leave to adduce further evidence) to support the proposition that there was a written delegation within the meaning of s.149(1A) of the Act to the Review Officer by the Registrar.
Accordingly, in my view, the trial Judge did not, in the circumstances, have jurisdiction to entertain the application. In those circumstances I would grant the appellant leave to appeal. I would allow the appeal. I would order that Orders (1) and (2) of 16 April 1998 be set aside and in lieu thereof I would order that the Form 63 application of the wife filed on 9 January 1998 and the Form 63 application of the husband filed on 17 February 1998 be dismissed.
STEELE J:
Yes, I agree with the reasons of the Chief Justice and those of Ellis J and I agree with the orders proposed by Ellis J.
NICHOLSON CJ:
There is one matter that I omitted to mention during the course of giving my reasons for decision. That is an argument that was raised by Mr Reid that the decision of the Review Officer was a nullity in any event because the Review Officer had no jurisdiction.
Having regard to the filing of the two Form 63's, I, for the reasons already given, do not find it necessary to deal with that argument which may or may not have substance. I note that it was an argument that was in fact advanced by the wife and is apparently one of the reasons that led to the Review Officer refusing to conduct a review. However that may be, it is not necessary for the purposes of this decision for that issue to be determined.
ELLIS J:
I would agree with addendum of the Chief Justice.
STEELE J:
I also agree.
RECORDED : NOT TRANSCRIBED
NICHOLSON CJ:
Yes, very well. The orders of the court will be:
1.The applicant have leave to appeal.
2.The appeal is allowed.
RECORDED : NOT TRANSCRIBED
3.Orders 1 and 2 of his Honour's orders of 16 April be set aside.
RECORDED : NOT TRANSCRIBED
NICHOLSON CJ:
We consider that the husband having been successful in these proceedings should received his taxed costs of and incidental to the appeal and we will order accordingly.
I should perhaps mention that the reason, amongst others, for such order is that the husband been consistent in taking the objection, he has consistently sought to have the matter determined by a Review Officer in accordance with the Act and it was the wife's application that triggered these proceedings which, in effect, endeavoured to shut the review procedure out. In my view, therefore, it is entirely proper that the wife should pay the costs of and incidental to the application for leave to appeal and the appeal; such costs to be as agreed and failing agreement as taxed.
I certify that the previous 106 paragraphs are a true copy of the Reasons for Judgment delivered by this Honourable Full Court.
Danny Sandor
Senior Legal Associate to the Chief Justice
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