Secretary, Commonwealth Attorney General’s Department & Bashir
[2021] FamCAFC 137
•30 July 2021
FAMILY COURT OF AUSTRALIA
Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137
Appeal from: Secretary, Commonwealth Attorney General's Department & Bashir & Anor [2020] FCCA 2041 Appeal number(s): EAA 123 of 2020 File number(s): SYC 2122 of 2019 Judgment of: STRICKLAND, ALDRIDGE & TREE JJ Date of judgment: 30 July 2021 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Appeal from orders dismissing the appellant’s application under s 106A of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) – Where the primary judge held the Court had no jurisdiction to deal with the s 106A application because the first respondent was not a resident of a reciprocating jurisdiction – Where s 99(1) of the CSA Act confers jurisdiction on the Court to entertain a s 106A application – Whether the primary judge misconstrued the requirements to be met before making a declaration under s 106A – Error established – Leave to appeal granted – Appeal allowed and matter remitted for rehearing – Costs ordered in favour of the appellant in the sum claimed.
FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Where the second respondent conceded appealable error but contended the primary orders should be upheld nonetheless – Whether s 99(1) of the CSA Act confers jurisdiction on the Court in relation to all “matters” in dispute between the parties under the CSA Act – Whether the word “matters” in s 99(1) of the CSA Act extends to all of the relevant justiciable controversy between the parties arising out of a common substratum of facts – Where the child support legislation clearly establishes and regulates the child support regime – No legislative intention to confer jurisdiction on the Court in relation to all matters in dispute under the CSA Act – Notice of Contention dismissed.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44, 44AAA
Child Support (Assessment) Act 1989 (Cth) ss 23, 25, 29A, 29B, 30, 99(1), 100(1), 102A(1), 106A, 111
Child Support (Registration and Collection) Act 1988 (Cth)
Pts VII, VIIA, VIII, ss 81, 90
Commonwealth of Australia Constitution Act ss 75, 76, 77
Corporations Act 2001 (Cth) s 596A
Explanatory Memorandum, Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006 (Cth)
Replacement Explanatory Memorandum, Child Support (Assessment) Bill 1989 (Cth)
Cases cited: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Child Support Registrar & Crowley and Anor (2015) FLC 98-066; [2015] FamCAFC 76
Child Support Registrar & Scullin and Anor (SSAT Appeal) (2015) FLC 98-068; [2015] FamCAFC 200
Medlow & Medlow (2016) FLC 93-692 [2016] FamCAFC 34
Nandi & Listberg [2011] FamCA 861
Division: Appeal Division Number of paragraphs: 53 Date of last submissions: 18 June 2021 Date of hearing: 28 May 2021 Place: Heard in Sydney, delivered in Cairns Counsel for the Appellant and First Respondent: Mr Kaplan with Ms Roberts Solicitor for the Appellant and First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr North QC Solicitor for the Second Respondent: Broun Abrahams Burreket ORDERS
EAA 123 of 2020
SYC 2122 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: SECRETARY, COMMONWEALTH ATTORNEY GENERAL'S DEPARTMENT
Appellant
AND: MS BASHIR
First Respondent
MR NORMAN
Second Respondent
ORDER MADE BY:
STRICKLAND, ALDRIDGE & TREE JJ
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS THAT:
1.Leave to appeal be granted.
2.The appeal be allowed.
3.The second respondent’s Notice of Contention filed 9 September 2020 be dismissed.
4.The orders made by the primary judge in the Federal Circuit Court of Australia on 29 July 2020 be set aside.
5.The appellant’s Initiating Application filed 3 April 2019 be remitted for rehearing before a judge of the Federal Circuit Court of Australia other than the primary judge.
6.The second respondent pay the appellant’s costs in the sum of $12,891.84.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Secretary, Commonwealth Attorney General’s Department & Bashir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, ALDRIDGE & TREE JJ:
INTRODUCTION
By application filed in the Federal Circuit Court of Australia (“FCCA”) on 3 April 2019, the Secretary, Commonwealth Attorney-General’s Department (“the appellant”) sought an extension of time to apply for a declaration of parentage in respect of eight year old, X (“the child”), orders for parentage testing, and a declaration under s 106A(2) of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) that Mr Norman (“the second respondent”) be assessed in respect of the costs of the child because he is a parent of the child. On 29 July 2020, the primary judge made an order dismissing that application for want of jurisdiction.
From that dismissal, the appellant seeks leave to appeal under s 102A(1) of the CSA Act, and if leave is granted, to appeal against that dismissal.
Ms Bashir (“the first respondent”) is the mother of the child and supports the appeal, as she supported the application before the primary judge.
The second respondent concedes that the primary judge’s decision is affected by appealable error, however by his Notice of Contention filed on 9 September 2020, says that the order of the primary judge should nonetheless be upheld.
For the reasons which follow, leave to appeal should be granted, and the appeal should be allowed.
BACKGROUND
The primary judge in her reasons for judgment set out the relevant background to the matter and it is convenient for us to recite those reasons as background to the appeal:
4.The first respondent was born in Country H in 1982, and is currently 38 years old. She is the holder of a green card entitling her to reside in the United States (USA) from 2013 until 2023.
5.In 2012, the respondents met in City J, in the USA. At the time, the first respondent was engaged to another person.
6.In 2012, the respondents engaged in unprotected sexual intercourse. The following morning, the first respondent took contraceptive pills, commonly known as the morning after pill.
7.In 2012, the first respondent married her now ex-husband. Later that month, she discovered she was pregnant.
8.[The child] was born in 2013. The first respondent’s ex-husband appears on the child’s birth certificate as the father.
9.In November 2013, the first respondent notified the second respondent that he was the father of the child. The second respondent has maintained throughout these proceedings that the likelihood of pregnancy occurring in the circumstances of this matter is remote.
10.On 21 October 2016, the first respondent and her ex-husband entered into an agreement on their divorce. The judgment in the divorce sets out the following:
The parties mutually agree [the first respondent’s ex-husband] is not the biological father of [the child], the wife’s son born in 2013. [The first respondent’s ex-husband] represents and agrees that he has obtained two DNA tests comparing [the child’s] genetic markers to his own and both have conclusively confirmed his non-parentage. … [the first respondent] represents and agrees [the first respondent’s ex-husband] is not the father.” The divorce was finalised on 24 January 2017.
11.In December 2016, the second respondent complains that the first respondent sought his former wife’s details from his brother.
12.On 11 January 2017, the first respondent completed an Application for Child Support Assessment.
13.On 20 November 2017, the Department of Human Services (DHS) received a Child Support Enforcement request from the Child Support Enforcement Division of the City J Department of Revenue dated 11 August 2017. That agency requested DHS to establish the parentage of [the child], and obtain and enforce the Orders for current and retrospective child support on behalf of the first respondent.
14.On 26 April 2018, DHS refused the application on the basis there was no evidence to indicate the second respondent is the father of the child.
15.On 4 May 2018, [the appellant] received a request from DHS to establish parentage of the child. The [appellant] sought legal advice.
16.On 13 June 2018, the first respondent was notified that her application for child support was unsuccessful.
17.On 15 March 2019, the first respondent executed a Power of Attorney appointing the [appellant] as her legal representative for the purposes of making an application for a declaration under section 106A(2) of the [CSA Act].
18.On 4 April 2019, the [appellant] commenced these proceedings. The application was commenced approximately seven months outside the prescribed statutory time limit in accordance with Rule 25A.06 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
(Emphasis in the original)
The primary judge then outlined that the issues for determination were as follows:
19.…
a)Whether the Court has jurisdiction to deal with the application;
b)If so, whether the Court should grant an extension of time for the making of the application for a declaration under s 106A(2) of the [CSA Act];
c)If so, whether the Court should make Orders for parentage testing;
d)Whether an Order made restraining the first respondent from disclosing information obtained in these proceedings other than in specified circumstances should continue.
Her Honour thereafter set out the provisions of ss 25, 29A and 29B of the CSA Act under the heading “[t]he law in relation to the issue of jurisdiction” (at [25]–[27]). After finding that the first respondent was not a resident of Australia, her Honour went on to observe, with reference to s 29A of the CSA Act, that a person who is not a resident of Australia may apply for an administrative assessment of child support if “the parent is a resident of a reciprocating jurisdiction on the date the application is made” (at [28]). After making findings as to whether the first respondent was a resident of a reciprocating jurisdiction (at [30]–[52]), her Honour concluded:
53.I find that the challenge to the Court’s jurisdiction on the basis that the first respondent is not a resident of a reciprocating jurisdiction, being the USA, is made out. The onus is on the [appellant] to establish the matters necessary to ground jurisdiction, and they have failed to do so. The application is dismissed.
54.It is unnecessary for consideration of the other Orders sought, given the finding with respect to jurisdiction.
Her Honour then made the order dismissing the appellant’s application.
LEAVE TO APPEAL
Leave to appeal must be obtained in order to appeal the primary judge’s order pursuant to s 102A(1) of the CSA Act. The test for leave to appeal in this Court requires a consideration of whether the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal, and whether substantial injustice would occur if leave was refused (Medlow & Medlow (2016) FLC 93-692). However, that test will always give way to the particular interests of justice in any given case and the Court’s discretion to grant leave remains unfettered.
Further, there is authority that a “less restrictive approach” should apply to the grant of leave to appeal in child support matters, primarily because such orders will affect the parties’ financial position (Child Support Registrar & Scullin and Anor (SSAT Appeal) (2015) FLC 98-068 at [4]; Child Support Registrar & Crowley and Anor (2015) FLC 98-066 at [4]).
The appellant submits that leave to appeal should be granted for at least three reasons: the decision is attended by sufficient doubt; the grounds of appeal raise questions of law of public importance; and a substantial injustice would be caused to the first respondent if leave to appeal were not granted.
Consideration of the grounds of appeal is therefore necessary to determine whether the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration.
Grounds 1 and 2: Jurisdiction of the FCCA
These grounds contend that the primary judge erred in finding that the FCCA had no jurisdiction to deal with the appellant’s application and should have found that the Court’s jurisdiction was invoked by the declaration sought under s 106A of the CSA Act.
A court’s jurisdiction is anterior to its exercise of power to grant particular relief (CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 (“Blakeley”)). Jurisdiction is the “authority to decide” and should be “distinguished from the powers that a court may use in the exercise of its jurisdiction” (see Blakeley at [31] and the cases cited therein).
Pursuant to s 99(1) of the CSA Act, “[j]urisdiction is conferred on the… Federal Circuit Court of Australia… in relation to matters arising under this Act”. The appellant made an application for declaratory relief under s 106A of the CSA Act, and accordingly, as the appellant submits, by force of s 99(1) the FCCA has jurisdiction to adjudicate upon the application. It is contended that by holding to the contrary, the primary judge wrongly concluded the FCCA had no jurisdiction to deal with the application. In support of that proposition, the appellant relies upon Nandi & Listberg [2011] FamCA 861 (“Nandi”) at [50] where Forrest J held that a declaration sought under s 106A invoked the jurisdiction of the FCCA by way of ss 99(1) and 100(1) of the CSA Act.
Further, the appellant submitted that, contrary to the approach of the primary judge, the Court’s jurisdiction to adjudicate upon the application for declaratory relief under s 106A of the CSA Act does not turn on the appellant satisfying the Court that the requirements in s 25 of that Act are met. The only condition in respect of the Court’s jurisdiction arising from s 99(1) is that there be “matters arising under [the CSA Act]”. As submitted, the declaratory relief sought under s 106A was a matter under the CSA Act, and thus the primary judge did have jurisdiction to entertain the application. These grounds of appeal have merit.
As we have already noted, in any event, by way of his Notice of Contention and Summary of Argument, the second respondent conceded appealable error in respect of Grounds 1 and 2, and particularly that the FCCA had jurisdiction to entertain the appellant’s application.
Whether or not the primary judge had the power to make the s 106A declaration is a different matter and is the subject of Ground 3.
Ground 3: Conflation of jurisdiction and power; erred in exercise of power
It is contended under this ground that the primary judge erred by conflating the FCCA’s jurisdiction to deal with the application with its power to grant a declaration under s 106A, and in relation to the latter, her Honour misconstrued the power in s 106A in finding that the requirements of ss 25(d) and 29A of the CSA Act needed to be met before making the declaration.
It is convenient here to set out the provisions of ss 25, 29A, 29B and 106A of the CSA Act in full:
25 Persons who may apply—parents
A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:
(a) the applicant applies for both parents to be assessed in respect of the costs of the child; and
(b) the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and
(c)the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and
(d)if either parent of the child is not a resident of Australia on the day on which the application is made—the application meets the requirements of sections 29A and 29B.
…
29A Person by whom child support is payable must be Australian resident or resident of reciprocating jurisdiction
(1) This section applies if:
(a)an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child; and
(b)the parent is not a resident of Australia on the day on which the application is made.
(2) The Registrar must determine whether child support is reasonably likely to be payable by the parent.
(3) If the Registrar determines that child support is reasonably likely to be payable by the parent, the application is taken to have been properly made only if:
(a)subsection 24(2) does not apply in relation to the child (payee of child support resident in reciprocating jurisdiction); and
(b)the parent is a resident of a reciprocating jurisdiction on the day on which the application is made.
Note:If an application is not properly made, the Registrar must refuse the application under section 30.
29B Applications by residents of reciprocating jurisdictions
(1) If a person applying under section 25 or 25A is a resident of a reciprocating jurisdiction, the application must be made:
(a)by the person and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or
(b)if an overseas authority of the reciprocating jurisdiction believes that child support is reasonably likely to be payable to the person in respect of a child—by the overseas authority on behalf of the person; or
(c)if the person believes that child support is reasonably likely to be payable by him or her to another person in respect of a child—directly to the Registrar by the person.
(2) If an application is made by an overseas authority of a reciprocating jurisdiction on behalf of a person, the regulations may prescribe actions the overseas authority may take for the person.
(3) If an application is made by a person and given to the Registrar by an overseas authority of a reciprocating jurisdiction, the regulations may prescribe actions the overseas authority may take for the person with the person’s consent.
…
106A Declaration that a person should be assessed in respect of the costs of the child
(1) This section applies if:
(a) the Registrar refuses to accept from an applicant an application for administrative assessment of child support for a child under subsection 30(2); and
(b)one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child.
Applications for declarations
(2) An application may be made to a court having jurisdiction under this Act for a declaration that:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—a person should be assessed in respect of the costs of the child because the person is a parent of the child; and
(b)if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child.
…
Declarations
(5) The court may grant the declaration if the court is satisfied that:
(a)if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the person should be assessed in respect of the costs of the child because the person is a parent of the child; or
(b)if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child.
(6) If the court grants the declaration:
(a)if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the Registrar is taken to have accepted the application for administrative assessment of child support; and
(b)if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar must reconsider the application under Division 2 of Part 4.
As submitted by the appellant, whether the FCCA has power to make a declaration under s 106A(5) of the CSA Act turns on whether four requirements are met.
First, s 106A(1) must be engaged; namely, that the Registrar refused to accept an application for administrative assessment of child support under s 30(2), and one of the reasons for so refusing was that the Registrar was not satisfied under s 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child. Plainly, that is what occurred in this case. The evidence before the primary judge was that the Registrar refused to accept the application because she or he could not be satisfied that the second respondent was a parent of the child (Annexure HG-02 of the appellant’s solicitor’s affidavit filed 3 April 2019).
Secondly, the application must be for a declaration that a person be assessed in respect of the costs of the child because the person is a parent of the child (s 106A(2)(a)), which was also met here.
Thirdly, the application must be made within “the time prescribed by the applicable Rules of Court” (s 106A(3)). The appellant acknowledged that their application was out of time, but included in their application was an order seeking an extension of time to file the application. As submitted by the appellant, that application was refused on the ground that the FCCA had no jurisdiction.
Fourthly, the Court must be satisfied either that the person should be assessed in respect of the costs of the child because the person is a parent of the child (s 106A(5)(a)), or that the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child (s 106A(5)(b)).
It is submitted by the appellant that the primary judge prevented herself from reaching a state of satisfaction about these matters because of her Honour’s erroneous approach to jurisdiction and/or the exercise of power under s 106A. Particularly, her Honour’s decision as to whether she had power to make the declaration under s 106A turned on whether the first respondent had fulfilled the requirements of s 25(d) of the CSA Act. The appellant submitted that cannot be right for the following reasons.
First, there is no reference or support in the text of s 106A(1) for the imposition of such a condition.
Secondly, the imposition of the conditions in s 25(d) flies in the face of s 106A(1)(a). It is submitted that on the primary judge’s approach to jurisdiction, an application under s 106A (which is conditional upon the Registrar refusing to accept the application because it has not properly been made) could not be entertained by the FCCA unless and until an applicant satisfies the Registrar that an application for administrative assessment of child support has been properly made (appellant’s Summary of Argument filed 26 March 2021, paragraph 62). As submitted by the appellant, this approach would result in the FCCA never having the power to grant declaratory relief under s 106A, because the application for administrative assessment will have been made properly, and the applicant would always fall foul of s 106A(1)(a) (appellant’s Summary of Argument filed 26 March 2021, paragraph 63).
Thirdly, the imposition of such a condition is inconsistent with the terms of s 106A(1)(b). That subsection specifies that “one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under s 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child”. In other words, the appellant’s argument is that the inclusive language of “one of the reasons” recognises that s 106A will apply where one of the reasons for the Registrar not accepting the application for child support was non-compliance with s 25(d).
Fourthly, the imposition of such a condition is not consistent with the purpose of s 106A. The appellant submitted that the purpose of s 106A is to permit an applicant who is otherwise unsuccessful in making an application for administrative assessment of child support to seek a declaration of parentage from a court having jurisdiction under the CSA Act. It is said this purpose is confirmed by the Explanatory Memorandum to the Bill which led to the repeal and replacement of s 106A. That extrinsic material described the provision as “deal[ing] with applications requiring parentage declarations by unsuccessful carer applicants” (Explanatory Memorandum to the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006 (Cth) at p.95). Further it was submitted, and as already referred to, Forrest J in Nandi recognised that the need to resort to s 106A is necessitated by the failure on the part of the parent applying for administrative assessment for child support to meet the requirements for making a proper application under the CSA Act.
As a result of the four preceding submissions, the appellant contended before us that the primary judge misconstrued s 106A in finding that in such an application, the requirements in s 25(d) had to be met; namely, that the first respondent be a resident of a reciprocating jurisdiction.
The second respondent contended in his Summary of Argument that no such finding was made by the primary judge at first instance, although had it been, conceded that it would have been erroneous. However we are well satisfied that a proper reading of the primary judge’s reasons at [25]–[53] demonstrates her Honour did wrongly determine that, before an order under s 106A could be made, the appellant had to establish that the requirements of s 25(d) were met. Indeed there is no other way in which to read [53]; the question therein being addressed was not one of jurisdiction at large, but rather was whether the Court had jurisdiction to deal with an application under s 106A.
Therefore this ground also has merit.
Outcome on question of leave and appeal
From the above discussion of the grounds of appeal, it is apparent that all grounds have merit, and the grounds do raise matters of law of public importance. Further, we agree that if leave was not granted, it would cause a substantial injustice to the first respondent. Leave to appeal will be granted. Finally, given error has been established, subject to the Notice of Contention, the appeal succeeds.
NOTICE OF CONTENTION
By his Notice of Contention, the second respondent submitted that whilst the FCCA had jurisdiction to entertain the appellant’s application, “the Court was bound to dismiss the applications where the first respondent was not able to apply for the administrative assessment of child support pursuant to the [CSA Act]”.
As found by the primary judge, and which is not challenged in this appeal, the first respondent was not a resident of a reciprocating jurisdiction, and thus she was not a person able to apply for the assessment of child support pursuant to the CSA Act. It was therefore submitted by the second respondent in his Summary of Argument that, in those circumstances, there was no utility to the declarations sought by the appellant, as the primary judge could not properly accede to the appellant’s application, and was therefore correct to order that it be dismissed.
However at the hearing of the appeal on 28 May 2021, in his oral submissions, Queen’s Counsel for the second respondent developed this argument in a way which had not been previously foreshadowed. Nonetheless we gave him leave to orally advance what became, in reality, a wholly new argument, and provided a timetable for the receipt of submissions in response by the appellant, and in reply by the second respondent.
The fresh argument advanced by the second respondent commenced by reference to s 99(1) of the CSA Act, which relevantly provides that “[j]urisdiction is conferred on… the Federal Circuit Court of Australia... in relation to matters arising under this Act” (emphasis added).
By analogy with High Court authorities pertaining to what will comprise a “matter” as that word is used in, for example, ss 75, 76 and 77 of the Commonwealth Constitution (“the Constitution”), the second respondent argued that the word “matters” in s 99(1) of the CSA Act extends to all of the relevant justiciable controversy between the parties arising out of a common substratum of facts. It was then said that, in determining an application under s 106A, the FCCA can therefore determine not just the bare dispute relating to s 106A itself, but any dispute under the CSA Act arising out of the same substratum of facts. Thus it was said that, even though s 30 of the CSA Act conferred upon the Registrar the task of determining whether or not an application for child support should be accepted, thereafter, in the course of any application under the CSA Act to the FCCA, such as under s 106A, the Court may itself resolve the matter reserved to the Registrar, as it is part of the single judiciable controversy.
This argument must be rejected.
First, we are not persuaded that the several authorities dealing with the meaning of the word “matter” in the context of the Constitution, for example whether federal jurisdiction extends to causes of action arising outside of federal law, or whether an examination under s 596A of the Corporations Act 2001 (Cth) is a “matter” for the purposes of s 77 of the Constitution, are particularly helpful in the very different, and highly specific, context of s 99 of the CSA Act.
Secondly, and in any event, the CSA Act clearly establishes a regime whereby the Registrar is tasked with determining whether or not to accept an application for child support, including whether the residency status of the payee meets the statutory preconditions. The Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act”) contains clear avenues for review of such a decision in Pts VII, VIIA and VIII, and significantly, imposes time limits for objections to decisions (s 81), and reviews to the Administrative Appeals Tribunal (“AAT”) (s 90). Further, s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) establishes time limits for appeals, which are restricted to questions of law, from the AAT to the Federal Court of Australia, or the FCCA pursuant to s 44AAA to which the same requirements apply. Plainly an immediate right of complete review to the FCCA is not provided for.
Other matters, for instance the rate at which child support should be payable, are also dealt with by highly prescriptive parts of the CSA Act. Again, the CSRC Act provides the specific avenues of review of such determinations, and again, initial and unconstrained recourse to litigation in the FCCA, untrammelled by the imposition of any time limit, is not among them. We can discern no legislative intention in the CSA Act that such matters are available to be litigated in the FCCA, (or indeed the Family Court of Australia) merely because the parties remained in dispute about them at the time that an application specifically mandated to be brought in either Court was on foot.
If the second respondent’s argument were correct, then it must also apply to other applications mandated under the CSA Act to be brought in a particular court. As but one example, if an application to review an administrative assessment of child support were brought under s 111, then, so long as it arose out of the same substratum of facts, the court hearing the application would be able to determine any other dispute under the CSA Act, including potentially, questions antecedent to liability for child support, for example satisfaction of residency requirements, as was litigated before the primary judge here.
The reality is that, if the second respondent’s argument were correct, often the tail would be wagging the dog. Moreover it is difficult to see how the court’s determination in relation to a dispute, at least initially by statute to be determined by the Registrar, would thereafter bind her or him, even if it was res judicata or gave rise to an issue estoppel between the parties.
This construction of the Act is supported by a consideration of the history of s 106A, and the relevant explanatory memoranda from time to time. Particularly the Replacement Explanatory Memorandum to the Child Support (Assessment) Bill 1989 (Cth), which first inserted s 99(1) noted that “[t]his clause would confer jurisdiction on those courts which would exercise jurisdiction in relation to applications under this Part” (emphasis added). That provides no warrant for construing s 99(1) as conferring jurisdiction in relation to all matters in dispute between parties which have their origin in the CSA Act. Moreover, s 106A was inserted into the Act at the same time as the previous s 106 was repealed. The repealed s 106(4) provided much broader powers to the Court to grant declaratory relief than merely in relation to the question of parentage. Yet the argument of the second respondent would necessarily mean that the matters within the repealed s 106(4) nonetheless remained available for litigation under an application pertaining to parentage under s 106A. That seems most unlikely.
However even if “matters” in s 99(1) includes all justiciable controversies under the CSA Act, there are two further impediments to the second respondent’s arguments prevailing. The first is that, unlike, for example, common law causes of action arising out of the same substratum of facts as causes of action arising under federal law, the question of whether the first respondent was a resident of a reciprocating jurisdiction is not in the nature of a cause of action. The CSA Act merely creates a process for administrative determination, with rights of review, including ultimately, judicial determination if the AAT is said to have erred in law. In what way that dispute is justiciable, in the same way that a common law cause of action is justiciable, is difficult to see. The second is that as the appellant contends, in any event, the relevant substratum of facts to a s 106A application is restricted to the single issue of parentage; questions of residence do not arise and are not engaged, as indeed, albeit in a different context, the second respondent conceded in his Summary of Argument.
This conclusion makes it unnecessary for us to consider the appellant’s further argument that, even if all the above conclusions were wrong, there nonetheless remained a discretion in the Registrar under s 30(2) to accept an application for child support, even if it is not properly made, in that the statutory requirements recited in s 23 of the CSA Act have not been met.
The Notice of Contention is without merit and should be dismissed.
OUTCOME
Given that the Notice of Contention has been dismissed, it follows that the appeal ought be allowed, the orders made on 29 July 2020 be set aside, and the matter remitted for rehearing before a judge other than the primary judge.
COSTS
In the event that the appeal succeeded, in that the Notice of Contention was unsuccessful, the second respondent conceded that he could not resist an order for costs in relation to the dismissal. As to the costs of the appeal, it was said by counsel for the appellant, that notwithstanding the appeal succeeded on a question of law, that nonetheless the second respondent should pay its costs, as the conceded error was induced by submissions made by then senior counsel for the second respondent before the primary judge. We accept the question of jurisdiction was erroneously advanced before the primary judge by then senior counsel for the second respondent, and in that sense the error was induced by him. In those circumstances we are persuaded that the second respondent should pay the costs of the appeal, and even though the error was one of law, the second respondent ought not have the benefit of a certificate in relation to any rehearing.
As to the quantum of the appellant’s costs, the schedule filed claimed them in the sum of $12,891.84 albeit they did not include any work undertaken after 10 May 2021, and therefore did not include the costs of the appeal hearing itself. However it is simply not possible for us to determine what those costs might be, and therefore we will allow the costs in the sum claimed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Aldridge & Tree. Associate:
Dated: 30 July 2021
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