Steuart and Registrar of the Family Court of Australia

[2007] AATA 1957

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1957

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1985

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARY STEUART

Applicant

And REGISTRAR OF THE
FAMILY COURT OF AUSTRALIA

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date15 November 2007

PlaceSydney

Decision The decision under review is set aside.

............... [sgd]...................

Ms N Isenberg  

Senior Member

CATCHWORDS

FAMILY COURT OF AUSTRALIA – Respondent refused to waive filing fee – whether payment of filing fee would cause financial hardship – decision under review is set aside.

LEGISLATION

Family Law Regulations 1984, r 11(1)(a), 11(7)(e), 16A

Administrative Appeals Tribunal Act 1975, s 37

CASE LAW

Re Conomy and Family Court of Australia [2000] AATA 536

REASONS FOR DECISION

15 November 2007 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.       In 15 February 2007 the applicant (Mr Gary Steuart) applied for waiver of court fees, under 11(7)(e) and 16A of the Family Law Regulations1984 (“the Regulations”) on the grounds of financial hardship.

2. On 26 February 2007 the respondent (Registrar) assessed Mr Steuart’s waiver application having regard to the Regulations and Guidelines for Clients and Registrars: Determining Applications for Waiver of Court Fees on the Basis of Financial Hardship (“the Guidelines”).

3.      The Registrar calculated Mr Steuart’s fortnightly income as $1,590, compared to the maximum allowable income of $1,200.  The excess amount of $390 did not satisfy the guidelines.  However an assessment of his combined liquid assets and disposable income, which totalled $100, was well below the $735 maximum allowable amount.

4.      The waiver application was declined by letter dated 6 March 2007 (T7).  The Registrar found that Mr Steuart had sufficient income to pay the fee, so as not to cause financial hardship, after reasonable daily expenses and liabilities were taken into account.

5. On 13 May 2007, pursuant to 16A of the Regulations, Mr Steuart applied for a review of the Registrar’s decision on the grounds that payment of court fees had caused financial difficulty.

6. During the hearing conducted by telephone, the reasons for which are discussed further below, Mr Steuart was self represented. Counsel for the Registrar elected not to appear and relied upon documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975.

ISSUES FOR THE TRIBUNAL

7.The following issue is before the Tribunal:

Whether, after taking into consideration Mr Steuart’s income, daily expenses, liabilities and assets, court fees of $191 should be waived on the basis of financial hardship

REGULATIONS

8.The provisions listed below are relevant to this matter:

11Fees in respect of proceedings

(7)       A fee referred to in subregulation (1) or (1A) is not payable if:

(e)a registrar, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay the fee, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the person.

Note   Regulation 16A makes provision in relation to the review of a decision of a registrar under paragraph (7) (e).

BACKGROUND and MR STEUART’S EVIDENCE

9.      Mr Steuart and his wife divorced. The former marital home was sold, and there was a shared custody arrangement in place for their three children. The eldest male child, aged 17, went to live with his mother and new partner, both of whom are in full time employment.  Mr Steuart, who is also in full time employment paid child support for the eldest, in addition to being the sole carer for two other children, a daughter and son, aged 15 and 12, respectively.  After a period of time Mr Steuart believed, from the solicitor, that his former wife would accept the final proposal concerning the property settlement and custody arrangement.  It therefore came as a surprise when his former wife instead sought Legal Aid and full custody.  Mr Steuart then became an unwilling respondent faced with new applications instituted by his former wife.  These fresh proceedings required payment of $191 in court filing fees, which Mr Steuart claims caused him financial hardship.  Consequently the fees were paid, only due to the use of money allocated to cover other expenses, which left Mr Steuart out of pocket over the subsequent weeks (T8).  

10.     I drew Mr Steuart’s attention to his application for waiver (T3) to confirm the amounts listed for income, assets, liabilities and daily living expenses.  The former marital home was sold for $310,000.  The initial agreement involved a 50/50 split of the proceeds with his former wife.  After mortgage repayments of $230,000, payment of money owed to other parties, plus agents’ commissions, solicitor and conveyancing fees, his former wife received about $5,000.  In contrast Mr Steuart remains unaware of his entitlements and yet to receive any proceeds of sale at all.  Although a tax refund has temporarily eased his current financial position, it is primarily used to pay for accumulated expenses.  This leaves Mr Steuart with a remaining total of $40 per week to cover unexpected costs until the next pay day.  Unexpected costs are demonstrated by the recent need for Mr Steuart to upgrade the tyres of the family car, in order to register the vehicle.  During the hearing, Mr Steuart told me he was on a rare holiday, paid for by his parents.  This opportunity for a break, presented a welcome relief from the stresses associated with the new legal wrangles.  He said that although finances are now somewhat improved, at the time of the waiver application Mr Steuart had liquid assets, after liabilities and deductions, which totalled $20.  

11.     Mr Steuart argued that payment of $191 in court fees had caused him financial hardship, in that it came from income budgeted for other expenses.  This left him with a shortfall, which he had to cover over the following weeks. Mr Steuart reiterated financial details, contained in his letter dated 12 March 2007 (T8), that he had underestimated and not included some amounts in his waiver application.  In particular, he had been conservative in estimating expenses associated in the care of two adolescents.  For example, he had not included payment of an allowance, mobile phones, clothing and weekend outings for both of the dependants in his fulltime care.  Further this leaves only a minimal balance to cover any unexpected expenses.  Due to these circumstances, Mr Steuart argued that the Tribunal should waive the cost of the filing fees.

CONSIDERATION

12. Payment of fees in respect of proceedings is covered by r 11(1)(a) of the Regulations. Pursuant to r 11(7)(e) payment of fees can be waived if it would cause financial hardship for the person liable to pay, after having regard to income, day to day living expenses, liabilities and assets.

13. The relevance of the Regulations and Guidelines were considered by Senior Member J Handley in Re Conomy and Family Court of Australia [2000] AATA 536 (paragraphs 15-16):

“15.  …I have assumed that the guidelines have been published by the respondent to ensure consistency of decision making. Such an approach is to be applauded so long as it does not cause adherence to a regime which disregards individual circumstances and causes the absence or interference with a properly exercised discretion required by a ‘registrar’ under Regulation 11(7)(e).

16. The ‘guidelines’ are not the Regulations of the Family Court and they have no force of law. In administrative decision making, the publication by departments and agencies of guidelines, policy manuals and other documents, designed to assist decision makers and promote consistency of decision making are useful tools but the rights of individual citizens and the lawful obligations of decision makers to those citizens should not be overlooked or ignored.”

14. The decision under review was made in consideration of the Regulations and Guidelines for Registrars. The Guidelines note that a tripartite test was developed to aid in the calculation of whether payment of court fees should be waived. An applicant who meets all parts of the test will be entitled to a waiver. However if an applicant does not satisfy each part of the test, a waiver may still be granted, depending on financial hardship. Contained in the Guidelines are tables which assess an applicant’s eligibility for waiver of court fees. The income table lists the maximum allowable, fortnightly after-tax, amount an applicant may receive to satisfy the test.

15.     According to the Guidelines a ‘dependant’ may include children to whom child support payments are made. Mr Steuart has three dependants but only listed two notwithstanding he also paid his former wife $130 per month in child support payments for the eldest child.  This explains why the figure of $130 is recorded for children’s expenses on the waiver application (T3).  The discrepancy is also carried over into the Registrar’s worksheet, which notes $1,200 as maximum allowable amount (T5), rather than the correct figure of $1,400 which applies for 3 dependants.  Also, only a minimal $60 is recorded for sporting fees as other expenses.  It is clearly evident from Mr Steuart that he was conservative with this amount.  He estimated, for example, $34 pocket money, $22.50 for mobiles, $7.50 shoes, and $24 games.  This amounted to $88 per fortnight more than originally calculated.  He then would have been left with only $2 per week after deductions.  This figure does not include clothes for his daughter, which, in my view, would be likely to substantially exceed $2.

16.     After providing a more detailed assessment, it can be concluded that at the time of the waiver application, Mr Steuart’s expenses exceeded his fortnightly income.

17.     Mr Steuart also gave evidence that his only other asset was his home, in which he remains unaware of his entitlements, nor expects any substantial amount as outlined in paragraph 10.  

18.     I am satisfied that payment of the filing fee should be waived as it caused Mr Steuart financial hardship.  In coming to that view I observe paragraph 3.13 of the Guidelines, where a waiver is warranted when fortnightly expenses and liabilities exceed income.

DECISION

19.     The decision under review is set aside and in substitution it is decided that the filing fee payable by Mr Steuart should be waived.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         .......... [sgd]...............
  Associate

Date of Hearing  11 October 2007
Date of Decision  15 November 2007
Appearance for the Applicant                   Self-Represented