S and P

[2003] FMCAfam 198

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & P [2003] FMCAfam 198

FAMILY LAW – Child support – application for declaration – applicant must prove refusal by Registrar to accept application for administrative assessment – jurisdiction of court.

Child Support (Assessment) Act 1989, ss.98X, 106

Applicant: JAS

Respondent: WAP

File No: ADM 273 of 2003

Delivered on: 24 April 2003

Delivered at: Adelaide

Hearing date: 24 April 2003

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Ms Templeton Tait

Solicitors for the Applicant: Graeme D Hemsley Solicitors

The Respondent: No appearance

ORDERS

1. The Application is struck out.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM 273 of 2003

JAS

Applicant

And

WAP

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for a declaration under section 106 of the

   
   

   Child Support (Assessment) Act that the applicant is entitled to an administrative assessment for a child NLP who was born on 21 October 2002.

2. The application at this stage appears to be without jurisdiction. Section 106, of course, is the relevant section of the Child Support (Assessment) Act, which provides:

   Where the registrar refuses to accept a carer application for administrative assessment of child support, the applicant may, subject to subsection (1A), apply to a court having jurisdiction under this act for a declaration that the applicant was entitled to administrative assessment of child support for the child.

3. What needs to be shown is, first of all, that the registrar has refused to accept a carer application, and in fact that is a proof required before an application can come before the court; in fact, before the court has jurisdiction to hear it.  Subsection (1A) makes a specific reference to jurisdiction, where it says:

   A person may not apply to a court under subsection (1) unless:

   (a) the person has objected under section 98X to the registrar's refusal to accept the application for administrative assessment; and

   (b) the registrar has either disallowed the objection or has allowed it only in part.

4. Section 98X provides that:

   A person may lodge with the registrar an objection in writing to any of the following decisions of the registrar -

   and the relevant one is:

   to refuse to accept an application for administrative assessment.

5. These are matters which must be proved.  The way a court would normally expect that to be proved is for that correspondence in fact to be annexed to the affidavit of the applicant.  There is an affidavit here relating to the history of the applicant and the child, but it is silent as to the proceedings that she has taken to obtain an internal review from the child support registrar.

6. There should be, to give the court jurisdiction, an affidavit from the applicant to which would be annexed first of all a letter from the child support registrar refusing to accept the application for administrative assessment of child support. There should also be annexed a copy of the written objection made by the person pursuant to section 98X of the act, and there should finally be annexed a copy of the letter from the registrar, either disallowing the objection or, it says, allowing it only in part. Of course, in matters of this nature the registrar either accepts or refuses; they can hardly allow it in part. But until those things are done, an applicant cannot ask a court for a declaration to be made because the act does not give the court jurisdiction to do so unless those preconditions are met.

7. At this stage what I propose to do is to strike the application out so that further application can be made, when that evidence can be provided, and show the court has jurisdiction.

8. The application will be struck out and removed from the pending cases list.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 6 June 2003