Shafer and Kean

[2019] FCCA 1781

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAFER & KEAN [2019] FCCA 1781

Catchwords:
CHILD SUPPORT – Application for leave to review administrative assessments.

Legislation:

Child Support (Assessment) Act1989 (Cth) ss.3, 4(2), 98S, 111, 111(1), 112(1)

112(1)(a), 112(4), 118

Child Support (Registration and Collection) Act 1988 (Cth) s.68

Applicant: MR SHAFER

Respondent: MS KEAN

File Number: MLC 13683 of 2018

Judgment of: Judge Harland

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Melbourne

Delivered on: 7 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Dellora

Solicitors for the Applicant: Flemington & Kensington Community Legal Service

The Respondent: No appearance

ORDERS

1. Pursuant to section 112(1)(a) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) leave is granted for the Child Support Registrar to make a determination under s.98S of the Act in relation to the assessment of child support payable by the Applicant, Mr Shafer, to the Respondent, Ms Kean, for the child, [X], born … 2013, for the period 1 July 2013 until 30 June 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13683 of 2018

MR SHAFER

Applicant

And

MS KEAN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The applicant seeks leave under s.111 of the Child Support (Assessment) Act to depart from the administrative assessments that are more than 18 months old but less than seven years. The father’s application on 27 November 2018 – initially, he had difficulty serving the respondent, but was able to effect personal service upon the respondent on 26 February 2019. The respondent has never appeared in Court in these proceedings and has not filed any evidence. The applicant is reliant on the Disability Support Pension and currently $50 a fortnight is being deducted from this pension because of the child support arrears he owes, which, as at 4 December 2018, was $3359.88. 

3. The arrears arise for the financial years 1 July 2013 to 30 June 2016. The applicant says that his income for those years were assessed on the basis of his previous tax returns and, therefore, did not take into account his income, which is now solely by way of Centrelink benefits. He admits that this is because he did not file tax returns for those years at the time. He has now filed those tax returns and placed the tax returns and assessments in evidence. The child support liability is with respect to one child; [X], born … 2013.

4. The law relating to the calculation and collection of child support in Australia is complex. An administrative assessment of child support can be amended or departed from in two ways. Firstly, a registrar of the Child Support Agency can make a determination pursuant to s.98S of the Child Support (Assessment) Act. Secondly, the Court can make such a decision pursuant to s.118 of the Child Support (Assessment) Act.

5. These powers both engage the provisions of s.111(1) of the Child Support (Assessment) Act which deals with the process with respect to seeking to depart from child support periods which have been in place for more than 18 months:

   Parent or carer applications

   (1) 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.

6. Pursuant to s.112(1) of the Child Support (Assessment) Act, the Court is granted a discretion with respect to applications made to it arising from the operation of s.111. Section 112(4) sets out the matters which the Court must have regard to in exercising its discretion under s.112(1).

7. The first consideration is any responsibility for and the reason for delay. In this case, the applicant is responsible for the delay. He explains that during that period he had a number of personal challenges. Annexure F to exhibit A is a letter from the Salvation Army, which is undated, but refers to public housing assistance that they have been providing Mr Shafer. It refers to the fact that he had been running a business in Suburb A and living in accommodation there when he was asked to vacate the premises within a week as the building had been sold to property developers. After that period, for a period of three months, he was sleeping in his car.

8. The letter also refers to Mr Shafer being diagnosed with dyslexia, therefore, having difficulties with reading. Annexure G to exhibit A is a letter from Medical Clinic, dated 23 May 2016, addressed to the Infringements Court. It is a letter from the applicant’s treating physician, who says that he has been treating him for the past two years and that during that period the applicant has suffered from severe and chronic depression and anxiety, worsened by the external stressors that he has faced. 

9. He had been involved at that time with a family law dispute and now also had proceedings with the criminal justice system. The doctor is of the opinion that his severe and chronic mental health has been exacerbated by those factors and has had a severe impact on his daily functioning. The applicant has been receiving assistance from the Flemington and Kensington Community Legal Service, who has been providing him with assistance in his other legal matters as well as this one. 

10. Annexure A to exhibit A is the Child Support Assessment showing the assessments for that period, being calculated on the basis of him earning an income of approximately $44,000. Annexure B are the notices of assessment and Annexure C are the individual tax returns showing that this taxable income for 2014 and 2015 was less than $5000. Annexure E to exhibit A are Centrelink payment summary statements showing that he was in receipt of Newstart Allowance throughout 2014 and up until 30 June 2015. 

11. The applicant also annexes several documents to his affidavit filed with his initiating application and that shows that from 1 July 2015 he was in receipt of the Disability Support Pension, which is indicative of him having been assessed with having a disability of sufficient seriousness that he is unable to work beyond the minimum periods that are allowed to recipients under that support pension. I am satisfied that the applicant has provided an adequate explanation for the delay considering his personal circumstances and the other legal matters that he has had to address. 

12. The next consideration that I must have regard to is the hardship that would be caused to the applicant if he is not granted leave. Given that the applicant’s only income is the Disability Support Pension and, further, that $50 a fortnight is being deducted from his pension, then I am satisfied that the applicant will suffer hardship if leave is not granted as the debt will be in place for some considerable further period of time if it continues to be deducted from his benefits at that rate. The principal of the debt is not being added to as he has brought his tax returns up to date, but there are penalties applied to the debt being overdue.

13. The third factor is that I must consider is the hardship to the respondent. As the respondent has not filed any evidence and has not appeared in Court, I do not have any evidence with respect to any hardship suffered by her and, thus, that is not a factor that is against the applicant’s application. I refer to s.3 of the Child Support (Assessment) Act which states the parents have a primary duty to maintain their children and the objects of the Child Support (Assessment) Act which set out in s.4(2).

14. I also comment that the Court has no jurisdiction to remit the penalties charged by the Child Support Registrar, pursuant to s.68 of the Child Support (Registration and Collection) Act 1988, but the applicant may apply to the Child Support Registrar to have the penalties remitted if the applicant is able to satisfy the conditions referred to in that section. I am satisfied that in the circumstances the applicant has made out his case and that the Court should exercise its discretion to grant him the necessary leave.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 26 June 2019