Whittaker and Child Support Registrar (No. 2)
[2012] FamCAFC 203
•7 December 2012
FAMILY COURT OF AUSTRALIA
| WHITTAKER & CHILD SUPPORT REGISTRAR (NO. 2) | [2012] FamCAFC 203 |
FAMILY LAW – APPEAL – CHILD SUPPORT – ENFORCEMENT ORDERS – Where the appellant sought leave to appeal against enforcement orders for the payment of child support liabilities and related penalties – Where the enforcement orders were made in respect of a declaration of liabilities made in May 1997 and further liabilities subsequently incurred – Where the appellant did not appeal from the declaration the subject of the enforcement proceedings – Where the appellant had repeatedly challenged, unsuccessfully, in first instance and appellate proceedings in the Federal Court and the High Court the constitutional validity of the Child Support Scheme giving rise to his liability – Where the primary grounds of appeal raised by the appellant in this appeal need not be directly addressed, having been previously raised by him in, and dismissed by, courts of binding or persuasive authority – Where there was no substance in any of the additional grounds of appeal agitated – Where the appellant failed to demonstrate an error of principle on the part of the Federal Magistrate, or a decision resulting in a substantial injustice to him – Leave to appeal refused.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the respondent Registrar sought to adduce in the appeal a document which clearly formed part of Exhibit 1 in the first instance proceedings and should have been in the appeal books however was omitted – Where such an issue should have been addressed by consent before the Regional Appeals Registrar, however an application was necessitated by the appellant’s unreasonable resistance – Application allowed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – APPLICATION FOR LEAVE TO FILE AND RELY ON FURTHER WRITTEN SUBMISSIONS – Where on two occasions subsequent to the hearing the appellant attempted to file and rely on further written submissions – Where the respondent Registrar opposed leave being granted –Where the appellant filed lengthy written submissions prior to, and made lengthy oral submissions at the hearing of the appeal – Where the appellant failed to demonstrate cogent reasons why leave should be granted – Where nothing contained in the further written submissions would affect the Court’s decision in the appeal – Application dismissed.
FAMILY LAW – APPEAL – COSTS – Where the appellant unreasonably resisted the respondent Registrar’s request to include a document which ought to have been included in the appeal books and therefore necessitated the application in an appeal to adduce further evidence – Where the appellant filed a wholly unmeritorious application in an appeal seeking to rely on additional further written submissions five months after the hearing – Where the appellant has been wholly unsuccessful in the appeal – Where the appellant agreed at the hearing of the appeal that if the appeal was unsuccessful his financial circumstances would not prevent him from meeting a costs order – Appellant ordered to pay the respondent Registrar’s costs of the appeal and the applications in an appeal, to be assessed.
| Child Support (Assessment) Act 1989 (Cth) s 102A Child Support (Registration and Collection) Regulations 1988 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Child Support Registrar v Meekin (2008) 224 FLR 27 Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 Whittaker v Child Support Registrar and Another (2006) 106 FCR 105, [2000] FCA 1733 |
| APPELLANT: | Mark Alan Whittaker |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC 4659 of 2008 |
| APPEAL NUMBER: | NA 36 of 2011 |
DATE DELIVERED: | 7 December 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, May & Murphy JJ |
| HEARING DATE: | 31 May 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 312 |
REPRESENTATION
| APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Howe QC & Dr Brasch |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
Leave to appeal from the orders of Federal Magistrate Slack made 7 April 2011 is refused.
The application in an appeal filed by the appellant on 8 November 2012 be dismissed.
The appellant pay the respondent’s costs of the appeal to be assessed.
The appellant pay the respondent’s costs of and incidental to the applications in an appeal filed 17 May 2012 and 8 November 2012 to be assessed.
IT IS NOTED that publication of this judgment by this Court has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 of 2011
File Number: BRC 4659 of 2008
| Mark Alan Whittaker |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
For almost twenty years Mark Alan Whittaker has sought to avoid his legal obligation to pay child support debts. That debt now stands, roughly, at some fifty-thousand dollars. This appeal is the most recent in a lengthy line of litigation proceedings pursued by him across a range of different courts. Most of the grounds of appeal before us have already been raised by him elsewhere, and conclusively addressed and dismissed by those other courts. The litigation history of the matter and legal principles which have arisen from and been applied to those cases are not only instructive to the appeal at hand, but are—we think—determinative. Insofar as new grounds of appeal are raised, for the reasons which follow, they have no substance.
This is an appeal from orders made by Federal Magistrate Slack on
7 April 2011 in relation to the appellant’s child support debt. The proceedings before the Federal Magistrate were commenced by the Child Support Registrar (“the Registrar”), who sought enforcement of the balance of a child support debt owing under a declaration made in the Cairns Magistrates Court on
26 May 1997. The Registrar also sought enforcement of penalties and further maintenance liabilities which had accrued since the making of that declaration.
Having satisfied himself that the two amounts sought to be enforced by the Registrar were amounts for which the appellant was liable, the Federal Magistrate made orders that Mr Whittaker pay to the Registrar the nominated amounts. Default orders for enforcement were also made, such that if he failed to pay the amounts by the due date, the Official Receiver for the Bankruptcy District of the State of Queensland for and on behalf of the Commonwealth would be empowered to take possession of, and sell the appellant’s interest in (as tenant in common with his current wife), two properties located in North Queensland.
On 4 May 2011 the appellant filed a notice of appeal from the orders.
An amended notice of appeal was filed on 25 November 2011, containing 40 grounds of appeal. Many of these grounds were not supported by submissions, and some were abandoned by the appellant at the hearing, in particular grounds 29, 30 and 33.
In addition to written submissions, numerous affidavits were filed by each party prior to the appeal hearing.
Each party also filed a Notice of Constitutional Matter, which was served on the Attorneys-General of the Commonwealth, States and Territories, however none asked to be heard in the appeal.
The respondent Registrar filed an application to adduce further evidence on 17 May 2012, opposed by the appellant. A formal application should have been unnecessary. In preparing the appeal books the appellant had failed to include an exhibit tendered by the Registrar in the proceedings before the Federal Magistrate. The document “Exhibit 1” is the Certificate demonstrating the amounts payable. We will deal with this application later in the reasons.
After the hearing of the appeal, on 29 June 2012 and again on
8 November 2012, the appellant sought to file further written submissions, which was opposed by the respondent. We will deal with the further written submissions later in these reasons. To ensure that the appellant had every opportunity to place before us relevant material, and as he is a litigant in person, we have given him considerable latitude in this matter.
In addition to orders allowing the appeal and payment of the appellant’s costs by the Registrar, the appellant seeks a declaration that “there is no moral obligation to pay a child support liability assessed administratively under the Child Support (Assessment) Act 1989”, and that “the filing of a Form 45B Summons to enforce a child support liability does not constitute a caveatable interest for the purpose of ordering an injunction restraining a party from dealing with real property”.
Section 102A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) and s 107A of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) provide that leave is required to appeal to this Court from orders in relation to child support.
Background
The appellant’s child support debt arose from an administrative assessment conducted under the Assessment Act, approximately 18 years ago in 1994. According to the “Child Support Payer Transaction Statement” which was part of Exhibit 1 in the proceedings before the Federal Magistrate, the appellant’s debt began accruing in December 1994. No payments from the appellant were received until March 2000, more than five years after the appellant’s liability commenced. The accrued debt at that time was $28,993.77. Payments at a rate of $10 per fortnight were recorded until November 2004, by which time the debt had further increased to $35,162.17. No further payments are recorded. The balance of the debt at 30 June 2010 when the record was produced was $46,960.79, consisting of $15,603.30 in actual child support debt, $28,611.39 in late payment penalty debt, and $2,746.10 in legal costs.
In the proceedings before the Federal Magistrate, the Registrar sought to enforce two separate debts arising from the appellant’s child support liability. The first was contained in the Form 46 which sought outstanding amounts related to the Cairns Magistrates Court decree made in 1997. The total amount owing, accounting for the balance of arrears of registered maintenance liabilities, for late payment penalties, for costs and for payments received, was $16,278.39 (AB 2:157). The second debt was contained in the Form 45B and related to outstanding amounts arising from registered liabilities which accrued after the making of the 1997 decree. The total amount, taking account of arrears of registered maintenance liabilities and for late payment penalties, was $26,652.32 (AB 2: 157-8).
As we have already said many of the appellant’s grounds of appeal before us have already been raised by him elsewhere, and addressed and dismissed by other first instance, intermediate appellate and final appellate courts. It is therefore instructive to canvass the litigation history of the matter, and legal principles which have emerged from and been applied to those cases, before considering the application for leave to appeal and then if necessary the appeal. The following is a summary.
Litigation History
Proceedings commenced approximately 15 years ago in 1997. The Deputy Child Support Registrar made an application for a declaration in respect of registered child support liabilities of Mr Whittaker (owing to the Commonwealth). On 26 May 1997, upon hearing counsel for the Child Support Registrar and the appellant in person, Magistrate Fitzsimon in the Magistrates Court at Cairns granted the declaration sought, exercising jurisdiction under the Child Support (Registration and Collection Act) 1988 (Cth) (“the Registration and Collection Act”) and the Family Law Act 1975 (Cth) (“the Family Law Act”). The Magistrate declared that: “there is owing to the Commonwealth in respect of amounts owing under registered maintenance liabilities of the husband (inclusive of penalties) the sum of $16301.59 as at 7 May 1997”. [AB-160]
The appellant never directly appealed from the declaration of debt by the Magistrate. Rather, many years later he has challenged the nature of the power exercised by the Child Support Registrar and the constitutional validity of the various Acts which bestow those powers. The remedy sought in each case has been the setting aside of the determinations of the Child Support Registrar and therefore the quashing of the liabilities.
Appellant’s first challenge to the liability
First Federal Court Proceedings - Whittaker v Child Support Registrar and Another (2006) 106 FCR 105; [2000] FCA 1733
More than five years after the liability was first incurred and three years after the debt had been declared in the Magistrates Court at Cairns, in 2000 the appellant commenced proceedings in the Federal Court seeking prerogative writs of certiorari to quash three administrative assessment decisions of review officers of the Child Support Agency.
Each of these administrative decisions occurred prior to the declaration of the debt on 26 May 1997. The first decision was made on 3 May 1995, refusing the appellant’s application for a departure assessment designed to reduce his liability under the then current administrative assessment. The second decision made on 30 November 1995 raised the child support income amount, following a successful departure application by the appellant’s former wife. The third decision made on 10 October 1996 was similar to the first. The appellant therefore commenced these proceedings approximately four years after the making of the last decision about which he complained.
During the course of these earlier proceedings it became apparent that as part of his application, the appellant sought to challenge the authority of the Child Support Registrar to make decisions under Part 6A of the Assessment Act. The basis of that challenge, that such decision-making involved the Registrar exercising the judicial power of the Commonwealth, is an argument which has been raised by the appellant on numerous subsequent occasions, including in this appeal.
Drummond J dismissed the application and delivered reasons for judgment on 30 November 2000. In relation to the judicial power argument, his Honour held that in making an assessment of child support, the Registrar does not exercise the judicial power of the Commonwealth in violation of Chapter III of the Constitution.
In characterising the authority of the Registrar as “decisional” (at para 5), his Honour noted (at para 25) that the considerations which the Registrar has to take into account in making and departing from assessments are the same as those which the Court must consider under the Assessment Act. Whilst this pointed to the Registrar having judicial power, it was in his Honour’s opinion, “not decisive”.
Continuing (at para 26), his Honour applied the High Court’s judgment in
R v Quinn; Ex parte Consolidated Foods Corporation (1977) 138 CLR 1. In that case, Jacobs J referred (at page 8) to a passage in the judgment of Isaacs J in Shell Co of Australia Ltd v Commissioner of Taxation (Cth) (1930) 44 CLR 530 where his Honour said that although some powers are essentially judicial, others are “subject to no a priori exclusive delimitation” so that Parliament in its discretion may assign them accordingly. Thus, according to Jacobs J (at pages 9 to 10): “The determination of the facts, the existence of which Parliament has prescribed as a condition of the exercise of the administrative function of registration, is not necessarily the exercise of judicial power.” This was even so if “strangers to the application” are afforded natural justice.Rather, as Drummond J said (at para 28), the “intention of the legislature as to how the power is to be characterised in the circumstances of a particular case is an important (though not conclusive) consideration.” After analysing the legislative framework and applying this to the application before him, his Honour concluded that the legislative intent was plainly “to confer non-judicial, administrative power only” (at para 29). The “powerful indication” which bolstered this conclusion was that an official could (at para 29) “decline under s 98EA to make a decision if ‘the issues raised by the application are too complex to be dealt with…’ and leave it to…the Family Court.” His Honour opined (at para 29): “One feature always present in judicial power (subject only to the ancillary power to postpone by adjournment the time for making the decision) is the duty to make a binding decision. The right to avoid making a decision is wholly foreign to judicial power.”
Moreover, his Honour said that one consideration of the Registrar which is taken into account when deciding to make a departure from an administrative assessment is “whether he should create new rights, a factor which suggests that the power is administrative rather than judicial” (para 33).
The following excerpt from his Honour’s reasons is instructive:
33. Commonly, though not invariably, judicial power will involve:
“… that power which is brought to bear ... in making binding determinations as to the rights, liabilities, powers, duties or status put in issue in justiciable controversies and, in making binding adjustments of rights and interests in accordance with legal standards.”
(Nicholas v The Queen (1998) 193 CLR 173 per Gaudron J at 207 [70])
It can be said against Mr Whittaker that what the Registrar does, in considering whether to exercise the wide discretion conferred on him by ss 98B and 98C to make a departure from an administrative assessment, is consider whether he should create new rights, a factor which suggests that the power is administrative rather than judicial. See Re Dingjan; Ex parte Wagner at 360. Even such a power can, however, still be judicial if the legislature has conferred that power on a court and it “is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to [unspecified] policy considerations”. Re Dingjan at 360. Given the criteria established by s 117, there is no reason to doubt that judicial power is conferred on the courts by ss 116 and 117, though the cognate power conferred on the Registrar by ss 98B and 98C is administrative.
34. The decisions in question of the Registrar's delegates being within a valid grant of power, there is no ground upon which relief by way of prerogative writ should be granted.
(emphasis added in bold)
Intervening period – High Court decision in Luton v Lessels and Another (2002) 210 CLR 333
The appellant did not appeal from the first Federal Court decision, but rather brought two further applications in the Federal Court. In the intervening period however, the decision of Luton v Lessels and Another (2002) 210 CLR 333 was delivered by the High Court. That case involved a challenge to the validity of the legislative scheme for the assessment and enforcement of child support liabilities. The first basis of the challenge was the issue of taxation powers of the Commonwealth Parliament, similarly raised by the appellant in this appeal. The second basis was the issue of exercise of the judicial power of the Commonwealth. As we have noted, this was a challenge which had earlier been raised, and has been repeatedly raised since by Mr Whittaker, including in this appeal.
Pursuant to s 18 of the Judiciary Act 1903 (Cth), Callinan J stated a case and set questions for the decision of a Full Court. The Court was constituted by a bench of six members, who unanimously dismissed the challenge. The questions in the case stated by Callinan J, were answered unanimously in the following terms:
1.Q. Is the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) for the collection and payment by the second defendant of money otherwise payable to or receivable by the first defendant as a tax?
A. No.
2.Q. If “yes” to question 1 are the Acts invalid as being contrary to s 55 of the Constitution?
A. Unnecessary to answer.
3.Q. Do the Acts in purporting to authorise the second defendant to make the assessments and the determinations, to enter the particulars, to issue the notices, and to collect and apply payments in the way in which the second defendant did, involve the purported exercise of judicial power by the second defendant contrary to Ch III of the Constitution?
A. No.
In light of the appellant’s persistence in raising matters earlier determined by the High Court, it is, we think, necessary to set out what the High Court there had to say at some length. In finding that the legislative scheme did not constitute an imposition of a tax within the meaning of s 55 of the Constitution, Gaudron and Hayne JJ said in joint reasons for judgment:
Laws imposing taxation?
47.Although the plaintiff's statement of claim alleged that both the Registration and Collection Act and the Assessment Act are invalid, only the Registration and Collection Act was alleged to be an Act imposing (or, as the statement of claim put it, “dealing with”) taxation. The plaintiff submitted that “[t]he actual imposition of this ‘child support tax’ is achieved by ss 17, 24A and 30 of the Registration and Collection Act while the specification of persons who are liable to taxation and the definition of their liability are to be found in the Assessment Act”. Of the various provisions of Div 2 of Pt III which provide for registration of registrable maintenance liabilities, particular reference was made by the plaintiff to s 24A because it was under that section that the assessment of his liability to pay child support was registered.
48.It is clear that the Registration and Collection Act provides for the compulsory exaction of money which is to be paid to the Commonwealth. It is equally clear that it is inappropriate to speak of the exaction being in payment for any services rendered by the Commonwealth. Further, it may readily be assumed that the scheme for which the Registration and Collection Act provides is a scheme which is seen as being of public benefit, even though its principal focus can also be seen as being on the performance of each individual's obligation to provide child support for his or her child or children, and the satisfaction of the need, and the right, of that child or those children to that support. It by no means follows, however, that the Registration and Collection Act as a whole, or particular provisions of it, are properly described as a law imposing taxation.
49.All of the features which Latham CJ identified in Matthews v Chicory Marketing Board (Vict) […] as typical of a tax - compulsory exaction, by a public authority, for public purposes, enforceable by law, and not being payment for services rendered - are important. The presence or absence of none of them, however, is determinative of the character of the legislation said to impose a tax. It is necessary, in every case, to consider all the features of the legislation which is said to impose a tax.
…
51.Thirdly, in Australian Tape Manufacturers Association Ltd v The Commonwealth […], the majority of the Court concluded that the better view is that it is not essential to the concept of a tax that the exaction be by a public authority because it was "scarcely to be contemplated"[…] that the character of an impost as a tax depends upon whether the authority is a public authority. Nonetheless, as the majority also noted […], the character of the authority concerned may bear upon whether the purposes on which moneys raised are to be expended are themselves public. These matters were seen as significant in Tape Manufacturers because the impost then under consideration was to be paid directly to a collecting society designated under the relevant legislation; it was not to be paid into the Consolidated Revenue Fund.
52.Here, as has been noted earlier, amounts due from payers, and from the employers of payers, are debts due to the Commonwealth. When received, the amounts are paid into the Consolidated Revenue Fund. Amounts equal to what is received and amounts equal to deductions, made but not remitted, are then credited to the Child Support Account from which amounts payable to those entitled are paid. What is the significance of the fact that the amounts exacted are paid into the Consolidated Revenue Fund?
…
55.The destination of money that is exacted may well be significant in deciding whether it is exacted for public purposes. A requirement that a sum which legislation requires is paid be paid into the Consolidated Revenue Fund does not conclude the issue of characterising the law as one imposing taxation.
…
57.…
In particular, the constitutional requirement of s 81, for legislative appropriation of the Consolidated Revenue Fund formed of "[a]ll revenues or moneys raised or received by the Executive Government of the Commonwealth", is both the consequence of, and a necessary step in the effecting of, parliamentary control over taxation.
58.It follows that every tax that is raised must be paid into the Consolidated Revenue Fund. But the converse is not universally true. Not every sum that statute requires to be paid to the Commonwealth, and which is paid into the Consolidated Revenue Fund, is a tax. Perhaps so much would follow inevitably from the statement in s 53 that "a proposed law shall not be taken ... to impose taxation, by reason only of its containing provisions for the imposition ... of fines or other pecuniary penalties, or for the demand or payment ... of fees for licences, or fees for services under the proposed law". Whether or not that is so, it is a proposition that is now well established and not challenged.
59.What marks the present exactions apart from other exactions that have been held to be taxes is that in every case the sum exacted under the Registration and Collection Act is, when the maintenance liability is first registered, the amount which otherwise would be due and payable by the payer in satisfaction of an existing obligation owed by that payer to the carer of a child as maintenance for the child.
60.There is, therefore, under the Registration and Collection Act, more than the mere earmarking of a compulsory exaction for a particular application. Imposing a financial burden on one group in society for the benefit of another group in society will often constitute a tax. Pointing to some identifiable relationship between the group of payers and the group of recipients or even to some relationship between a particular payer and a particular recipient will not usually require some different conclusion. Under the Registration and Collection Act, however, the obligation to make a payment to the carer of the child is replaced by the obligation to pay the same amount to the Commonwealth. That obligation is coupled with the creation of a new right in the carer to have the Commonwealth pay the carer whatever the payer thereafter gives up - whether by making a payment to the Commonwealth or by suffering a compulsory deduction from salary or wages. The combination of these features - the substitution of a new obligation to the Commonwealth equal to an existing obligation which is terminated, coupled with the substitution of new rights in the carer against the Commonwealth equal to the extent to which the payer performs his or her obligation to the Commonwealth - takes this compulsory exaction outside the description of "taxation".
61.The fact that the original liability may later be varied requires no different conclusion. Subsequent variation of the amount for which a payer is liable does not diminish the significance of the fact that, when first registered, the liability owed by a payer to a carer is brought to an end and replaced by an obligation, in the same amount, owed to the Commonwealth. All that is changed by registration is the identity of the party to whom the liability is owed. Neither the existence nor the exercise of the power to make changes to the amount of the liability, in response to changed circumstances, alters the character of the exaction. The exaction not being a tax, the Registration and Collection Act is not a law imposing taxation. The first challenge to the Registration and Collection Act fails.
(footnotes omitted) (emphasis added in bold)
Gaudron and Hayne JJ then turned to the issue of the judicial power of the Commonwealth and held that neither the Registration and Collection Act nor the Assessment Act vests such power in the Registrar. Their Honours said:
Judicial power
62.The plaintiff submitted that provisions of the Assessment Act, and the Registration and Collection Act, purport to confer the judicial power of the Commonwealth on the Registrar. Particular reference was made to departure determinations made by the Registrar under Pt 6A of the Assessment Act, but the plaintiff's submissions were not confined to the validity of that part of the Act. Rather, it was submitted that both Acts provided for the Registrar to exercise the judicial power of the Commonwealth first, because the Registrar's decisions under the Acts are binding, authoritative and conclusive and, secondly, because the Registrar's decision fixed the extent of, or varied the extent of, existing rights and duties respecting the maintenance of children.
63.That the Registrar's determinations, if made within statutory power and otherwise made according to the requirements of the relevant Acts, are binding and authoritative may be readily accepted. So much follows from the terms of the Acts. Account must, of course, be taken of the various provisions for "appeal" against, or review of, determinations but, subject to that caveat, it may also be accepted that the determinations are conclusive. It does not follow, however, that the Acts confer judicial power on the Registrar.
…
67.It is, therefore, necessary to notice some further aspects of the Assessment Act. Of those, there is one to which reference has already been made but which is of particular importance. Section 79 of the Assessment Act provides that an amount of child support under the Act, which is due and payable by a liable parent to a carer, is a debt due and payable by the liable parent to the carer. It may be sued for and recovered in a court. What is important for the purposes of the present inquiry is, first, that the Registrar can take no step to enforce an assessment made under the Act - that is a matter for those who have the benefit or burden of the assessment and it is to be done by recourse to the courts in the same way as any other debt is enforced. There is not that capacity (so often found when judicial power is exercised) to make a decision enforceable by execution […]. Secondly, the assessment creates and quantifies the debt. It does not determine a question about the existence of any right or obligation […]. It is the factum on which other provisions of the Assessment Act and the Registration and Collection Act operate, thereby creating new rights and new obligations which are to govern the future […].
…
70.None of the provisions requiring administrative assessment of child support permit, let alone require, the Registrar to make any decision other than one attributing the circumstances disclosed by the application to one or other of the various statutory classes we have just mentioned, followed by a mathematical calculation of the monetary consequences that the Assessment Act prescribes. And because "the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter" [...] there is no requirement for the Registrar to engage in any processes of fact finding [...].
…
73.Obviously, the provisions governing both kinds of departure determination, with their reference to what would be "unjust and inequitable" require the making of a judgment about which opinions may differ in a particular case. And because the circumstances that may touch a decision about what would be unjust and inequitable may vary so widely, provision is made for the Registrar to refuse to make a departure determination, whether initiated by a liable parent or carer or by the Registrar, where "the issues involved are too complex to be dealt with" under Pt 6A […]. In such a case, the Registrar may recommend that application be made to a court having jurisdiction under the Act for an order under Div 4 of Pt 7.
74.Part 7 of the Assessment Act (ss 99-146) deals with the jurisdiction of courts under the Act. In particular, provision is made […] for applications to a court for a declaration about the applicability of the administrative assessment provisions. Provision is made […] for what are called "appeals" against incorrect administrative assessments and […] for orders for departure from administrative assessment. (The reference to "appeal", although similarly used in other contexts […], may mislead. The proceeding which is so described is the first application of judicial power; it is an exercise of original, not appellate jurisdiction.) An order by a court for departure from an administrative assessment may be made on the grounds on which the Registrar may make a departure determination […]. The other provisions of Pt 7 of the Assessment Act are not immediately relevant to the present question.
75.Finally, and no less importantly, it is necessary to notice the provisions made for objection to the Registrar's assessment of child support, whether by way of administrative assessment or departure determination. Part 6B of the Act (ss 98W-98ZJ) provides for objections to and internal reconsideration of decisions of the Registrar, including those decisions that are reviewable by a court having jurisdiction under the Act. The decisions reviewable by a court include decisions to accept or not accept an application for administrative assessment […], decisions as to the particulars of an administrative assessment […] and decisions to make or refuse to make a departure determination, whether initiated by the liable parent or carer, or by the Registrar […]. A person may not appeal to a court against the particulars of an administrative assessment unless the person has objected under s 98X, and the objection has been disallowed or allowed only in part […]. Similarly, an application for a declaration about an administrative assessment may be made only if the objection procedure has first been exhausted […].
76.Several points emerge from an examination of these features of the Assessment Act. First, as mentioned at the outset, the Registrar's assessment, whether as an administrative assessment or as a departure determination, is the factum by reference to which the statute creates rights for the future which then are to be enforced by resort to the courts; the assessment does not adjudge existing rights. Secondly, the Registrar's assessment, again whether as an administrative assessment or as a departure determination, is not final. It is open to the processes of objection and then "appeal" to a court. Thirdly, so far as administrative assessments are concerned, the statutory processes are wholly administrative. So far as departure determinations are concerned, the Registrar may make such a determination, but need not if the issues are "too complex". If the Registrar does make a departure determination, the party dissatisfied can object and if still dissatisfied go to a court; if the Registrar does not make such a determination, again the party dissatisfied can object and then go to court. In either event the Court will decide the question afresh, without regard to what the Registrar has done.
77.Neither the Registration and Collection Act nor the Assessment Act vests the judicial power of the Commonwealth in the Registrar.
(footnotes omitted) (emphasis added in bold)
Federal Court proceedings continued - Whittaker v Child Support Registrar [2002] FCA 1429, Whittaker v Child Support Registrar [2002] FCA 1430, Whittaker v Child Support Registrar [2003] FCAFC 114)
The next application brought by the appellant in the Federal Court, following the High Court decision in Luton v Lessels, was for a writ of prerogative relief to resist an application by the Child Support Registrar addressed to the appellant, seeking to obtain his tax file number. The appellant argued that the provisions of the Registration and Collection Act and Assessment Act authorising such an act were inconsistent with the Privacy Act 1988 (Cth) and the Taxation Administration Act 1953 (Cth). It was also argued that some provisions of the latter act were invalid. Before us also the appellant similarly agitated the argument that the intended acquisition of his tax file number was an invalid application.
Dowsett J heard the application, and on 24 October 2002 delivered short reasons for judgment, finding no substance in the claims made by Mr Whittaker (Whittaker v Child Support Registrar [2002] FCA 1430). The relevant part of his Honour’s reasons is as follows:
3.Subsection 8WA(1) of the Tax Administration Act provides:
A person must not require or request another person to quote the other person’s tax file number.
4.Subsection 8WA(1AA) provides for certain exceptions. One such exception is where the request is made in connection with the exercise of powers or performance of functions pursuant to an obligation imposed by a taxation law or a law of the Commonwealth referred to in par 202(ga) of the Income Tax Assessment Act 1997 (Cth) (the “Tax Assessment Act”). That paragraph relates to the facilitation of the administration of the Assessment Act and the Collection Act. Thus s 8WA has no apparent application for present purposes. Similar considerations apply to s 8WB of the Tax Administration Act...
5.The applicant also relies upon the provisions of s 17 of the Privacy Act. That section requires that the Privacy Commissioner issue guidelines concerning the collection, storage, use, and security of tax file numbers. Guidelines have been issued. However it is made clear in, for example, guideline 2.1, that any prohibition does not extend to uses which are authorised by taxation, assistance agency or superannuation law…
6.Section 202 of the Tax Assessment Act discloses that one of the purposes for the introduction of tax file numbers was to facilitate the administration of the Assessment Act and the Collection Act. The guidelines should not be construed so as to interfere with the achievement of that purpose. The application will be dismissed...
The second further application brought by the appellant in the Federal Court was for a writ of certiorari quashing the decision of the Child Support Registrar to accept an application for administrative assessment (in effect the original assessment decision of the Registrar). The appellant raised three points: again the inappropriate conferral of judicial power of the Commonwealth on the Registrar; that the assessment could only take place with the consent of the person against whom the assessment is sought; and that notice pursuant to s 34 of the Assessment Act was not received. The application was also heard by Dowsett J and dismissed with reasons on 24 October 2002.
His Honour found no substance in any of the Mr Whittaker’s arguments, referring to the earlier decisions of Drummond J and of the High Court in Luton v Lessels (Whittaker v Child Support Registrar [2002] FCA 1429). The relevant part of the reasons is as follows:
4.Where the Registrar determines to accept the application, he or she must then immediately proceed to assess the amount of child support to be provided. Section 34 provides as follows:
(1)If the Registrar accepts an application for administrative assessment of child support for a child, the Registrar must immediately notify the applicant, and the person from whom the application sought payment of child support (as the case requires), in writing.
(2)The notice must also include, or be accompanied by, a statement that specifically draws the attention of the person from whom the application sought payment of child support to the right, subject to the Family Law Act 1975, to apply to a court having jurisdiction under this Act for a declaration under section 107 that the applicant was not entitled to administrative assessment of child support for the child payable by the person.
(3)A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.
5.The questions arising for determination are firstly, whether or not this process was followed in the present case and secondly, if it was not, what the consequences may be. Much time was spent at the outset in determining whether or not a notice pursuant to s 34 was ever produced by the Agency. In the end, although there is no direct evidence of such production, I am willing to infer that such a notice was produced. It is quite clear that by no later than 3 November 1994, the applicant was aware that an application had been made against him. On 6 January 1995, he applied to vary the assessment. In those circumstances I infer that the Registrar determined to accept such an application and made an assessment which had, in some way, come to the knowledge of the applicant. The applicant’s conduct in seeking to vary the assessment at that time suggests that, if there was any irregularity of which he was aware, he had by that time chosen to take no action with respect to it.
6.Subsequently, there has been an extended history of litigation concerning the assessment. During 2000 the applicant sought prerogative relief. On 30 November 2000, Drummond J dismissed the application. It is clear that the first of three decisions which were the subject of his Honour’s reasons concerned the applicant’s application of 6 January 1995 to vary the assessment. It is now too late for him to cavil about the circumstances in which the original determination was made. Any such complaint should have been raised before Drummond J, if not at a much earlier stage.
7.In any event, there is no substance in the present applicant’s criticism. He raises a number of points of complaint. The first is that some of the provisions of the Assessment Act, particularly those relating to the acceptance of an application and assessment, require the exercise of the judicial power of the Commonwealth and that they have been inappropriately conferred upon the Registrar. Such an argument is impossible to mount in face of the decision of the High Court in Lucen v Lessels [sic] (2002) 76 ALJR 635. The applicant argued that Lucen [sic] concerned only Part 6A of the Act and the provisions of the supporting legislation, the Child Support (Registration and Collection) Act 1988 (Cth) (the “Collection Act”). However, I cannot accept that proposition. At par 62 in the joint decision of Gaudron and Hayne JJ, it is made clear that the challenge was to the validity of the whole of the legislation. It also appears from the reasons of other members of the Court that the determination as to the validity of the legislation extended to all of the functions conferred by the Assessment Act. See, for example, the decision of Gleeson CJ at [22]. I do not consider it necessary to take the Constitutional argument any further.
8.The true thrust of the applicant’s challenge to the decision by the Registrar (to accept the application for assessment and to assess the child support payable) is a perception that such assessment can only take place with the consent of the person against whom the assessment is sought. There is no statutory authority for this proposition, and the applicant does not say that there is. His argument is rather that for some reason associated with his perception of the common law, it is necessary for the purposes of the Assessment Act that such consent be obtained. As I say, there is no support whatsoever for this in the legislation, nor am I aware of any aspect of the common law which would lead to that view. The point is simply without substance. As a corollary to that argument, the applicant also submitted that he may withdraw his consent at any time and that he has done so with effect from 1 July this year. He says that the effect of this is that he is no longer under any obligation with respect to the Act. Again, there is simply no justification for this view.
9.The appellant swears that he did not receive a notice pursuant to s 34. His affidavit has not been challenged in this regard, nor was he cross-examined. I see no reason to doubt that what he says is correct. However, as I have pointed out, by not later than 3 November 1994 he was aware that an assessment had been made. Shortly thereafter, he sought to vary it. Had there been any ground for challenging the validity of the process adopted by the Registrar, it ought to have been ventilated at that stage. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 604. Further, pursuant to Part 7 of the Act, there is provision for review both of the overall question of entitlement and of the assessment. See ss 107 and 110 of the Act. It appears from the judgment of Drummond J to which I have referred that the applicant made it clear in those proceedings that he had deliberately chosen not to pursue such avenues of relief. In those circumstances it is difficult to see why discretionary relief of the kind now sought ought be granted to him. In any event, it seems to me that he has waived or acquiesced in any failure to give him notice in 1994.
(emphasis added in bold)
The appellant subsequently appealed this second decision to the Full Court of the Federal Court. The Full Court (Spender, Cooper and Kiefel JJ) heard and dismissed the appeal on 27 May 2003 (Whittaker v Child Support Registrar [2003] FCAFC 114). Their Honours found no error in the findings and approach by Dowsett J, and underscored that in any event, the relief sought by the appellant was discretionary, and no error in the exercise of that discretion had been demonstrated.
Their Honours said:
3.The appellant submitted before Dowsett J that the assessment was not valid, or the decision to accept the application for assessment was not valid, because he was not given notice and he did not consent to the process of assessment.
4.Another point relating to the validity of the provisions relating to assessment was rejected by his Honour, having regard particularly to the decision in Luton v Leseles [sic] (2002) 187 ALR 529. We see no error in that approach. That decision forecloses any constitutional challenge.
5.With respect to the alleged requirement of consent, his Honour held that there was no substance in law to it. We agree.
6.His Honour accepted that notice may not have been given to the appellant, but that by 3 November 1994, the appellant had come to hear of the decision to accept the application. He subsequently applied to vary the assessment, but did not challenge it.
7.Section 72 preserves the validity of an assessment. His Honour observed that the specific terms of s 34(3), which deal only with the contents of the notice to be given under s 34(2), might leave open the question of the effect of failure to give notice under s 34(1). However, it would seem to follow, his Honour held, that if s 72 preserves the validity of the assessment, it is unlikely to have been intended to invalidate acceptance of the application upon which it was based. His Honour, however, finally determined the matter on discretionary grounds.
8.What the appellant had not done was to take any point about notice. If he had done so, other remedies might have been available to him under the Act. Indeed, his Honour specifically found:
‘The applicant's conduct in seeking to vary the assessment at that time suggests that, if there was any irregularity of which he was aware, he had by that time chosen to take no action with respect to it’ (Whittaker v Child Support Registrar [2002] FCA 1429 at [5]).
9.Having elected not to do so, he could not, much later, complain of lack of service of notice of the acceptance of the application (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 604).
10.In any event, relief by way of certiorari is discretionary. The circumstances did not suggest to his Honour such relief as an appropriate exercise of discretion. We do not consider that his Honour's discretion has in any way miscarried. The appeal should be dismissed.
(emphasis added in bold)
Appellant’s High Court Special Leave application – Whittaker v Child Support Registrar [2004] HCATrans 252 (23 June 2004)
The appellant then sought to appeal from the decision of the Full Court of the Federal Court to the High Court. A special leave application was heard by Kirby and Hayne JJ on 23 June 2004. Special leave was refused. The appellant argued two of the three points he had argued before Dowsett J.
The first was the constitutional invalidity of the child support legislative scheme on the basis that the Registrar was exercising judicial power. In seeking to overcome the hurdle of Luton v Lessels, the appellant submitted that the High Court had overlooked certain matters in the legislation, including matters that have been enacted since and that the Court ought reconsider the matter. In dismissing the application it was said by Kirby J at page 15 of the special leave transcript:
…In the Federal Court, the conclusion was expressed that the question was substantially determined by this Court’s decision in Luton v Lessels (2002) 210 CLR 333. We see no prospects that this Court would wish to reconsider or modify or re-express its finding there that the child support legislation is constitutionally valid. Nor are we convinced that any changes in the legislation, referred to by the applicant in Court today, affect the application of the Luton principle to the Act as applicable in his case.
The second point maintained by the appellant was that the assessment decision was invalid because the notice provisions contained in s 34 of the Assessment Act had not been complied with. This was rejected by the Court:
So far as the ground of non-compliance with the notice provisions of the Act in section 34 are concerned, we see no prospects of success in an appeal from the Full Court of the Federal Court. The primary judge was willing to accept that notice may not have been given to the applicant. However, he noted that by 3 November 1994 the applicant had come to hear of the decision to accept the application. The applicant subsequently applied to vary the assessment, but he did not then challenge it. The point is therefore factually and legally meritless. Discretionary relief would not be given in such a case; still less would it attract a grant of special leave to appeal to this Court.
(emphasis added in bold)
The appellant had therefore exhausted all avenues of appeal in relation to the original assessments which were the source of the child support debt. Notwithstanding the string of decisions adverse to the appellant, which reaffirmed the validity of the assessments and his obligation to pay the debt, he did not comply. As we have noted in the introduction to these reasons, the only period during which any payment appears to have been received was between March 2000 and November 2004 (a negligible amount of $5 per week).
Appellant’s second challenge to the liability – further Federal Court proceedings: Whittaker and Another v Child Support Registrar and Another (2010) 264 ALR 473; [2010] FCA 43, Whittaker v Child Support Registrar [2010] FCAFC 112
Approximately four years later in February 2008, by means of a challenge to a Departure Prohibition Order (“DPO”), the appellant attempted to re-agitate the issues of judicial power and notice of a decision by the Registrar in the Federal Court. On 6 December 2006 a delegate of the Registrar had made a DPO in respect of the appellant on account of the registered outstanding child support debt. The DPO was in force on 15 and 16 February 2008 when the appellant attempted to fly from Sydney international airport to Malaysia, stated to be for business purposes.
In the Federal Court before Lindgren J the appellant pleaded, inter alia, that he had been denied procedural fairness and the DPO was invalid because he did not receive notice of its making, and that the part of the legislation enabling the DPO to be made constituted a conferral of judicial power on the Registrar, contrary to the Constitution and that part was therefore invalid. The appellant clearly sought to use a different decision under the same legislative scheme to re-agitate his earlier unsuccessful arguments aimed at absolving his liability to pay the debt.
Lindgren J considered both the legal and factual merit of the appellant’s claim about notice. His Honour held that the legal validity of a DPO could not be affected by a failure to give notice of its making, and that in any event, under the service provisions contained in the Child Support (Registration and Collection) Regulations 1988 (Cth) (“the Child Support Regulations”), it could be found in this case that the appellant had been properly notified.
In response to the appellant’s judicial power contention, Lindgren J referred to the High Court’s rejection of such an argument in respect of the legislative scheme generally in Luton v Lessels. His Honour then gave further careful consideration to the specific features of the legislative provisions relating to the making of DPOs, to demonstrate that that decision applied also to defeat the appellant’s argument in the case before him. The judge concluded, based on similar features to those canvassed by the High Court, that the relevant part generally and s 72D specifically were not invalid (Whittaker and Another v Child Support Registrar and Another (2010) 264 ALR 473; [2010] FCA 43).
The appellant appealed once again to the Full Court of the Federal Court. The Full Court (Keane CJ, Moore and Perram JJ) heard the matter on
23 August 2010 and dismissed the appeal with reasons on 7 September 2010 (Whittaker v Child Support Registrar [2010] FCAFC 112). The grounds raised in that appeal which are relevant to this appeal, are that the Registrar’s attempt to obtain the appellant’s tax file number was unlawful, that the Assessment Act was invalid because it purported to confer a taxation power on the Registrar, and that the scheme vested judicial power in the Registrar. On this last point, the appellant sought to distinguish his case from the circumstances in Luton v Lessels by arguing that the amendments to the legislation which were considered in that case saved the legislation from invalidity (as opposed to the legislation at the time his liability was found).
The Court rejected each of these claims. In respect of the tax file number issue, it was held that the trial judge had made no error in failing to address these claims because the appellant, through his counsel, did not press these paragraphs of his application when a notice of motion for their dismissal was heard by his Honour. On the conferral of a taxation power and of judicial power on the Registrar, the Court held that the trial judge had observed correctly, both that there was no substance in the claims, and that they had been the subject of earlier appellate proceedings brought by the appellant in 2002, which were concluded by an unsuccessful application for special leave before the High Court. Importantly, with reference also to the decision of Luton v Lessels, the Court held that the appellant had demonstrated no error in the trial judge’s decision that he was precluded from agitating the same matters again.
Respondent Registrar’s Further Evidence Application
Ordinarily an application in an appeal to adduce further evidence would be considered after the grounds of appeal to determine whether such application fell within the parameters of CDJ & VAJ (1998) 197 CLR 172. In this case however, the basis for the inclusion of the evidence, though resisted by the appellant, is uncontroversial and it is appropriate to address the application before turning to a discussion of the grounds of appeal.
On 17 May 2012 the respondent Registrar filed an application to adduce further evidence, namely the amendment of the appeal books to include the s 116(2) certificate issued by the Child Support Agency, stating the amounts due and payable by the appellant as at 30 June 2010.
The Registrar submitted that the application ought be allowed because the certificate was part of Exhibit 1 in the first instance proceedings, however had not been included by the appellant in the appeal books with the other exhibits.
In oral submissions the appellant claimed he had not been properly served with the application, a claim which was rejected by counsel for the Registrar. In any event, it is apparent from email correspondence contained in the supporting affidavit from the Registrar’s solicitor, that by 1 March 2012 the appellant knew of the Registrar’s intention to apply to the Court to have the certificate included in the appeal material. The Registrar had emailed the appellant on
22 February 2012 pointing out the absence of the certificate, suggesting it had “inadvertently been omitted” (the compilation of appeal books being the responsibility of the appellant under the Family Law Rules r 22.18) and seeking consent to amend the books in order to avoid further hearing of the issue. On 1 March 2012 the appellant replied by email, advising he did not consent and his view that “an application to admit the document would have no prospect of success.”
It is clear from the transcript of proceedings on 30 June 2010 (AB 6: 811 line 35) and from the folder of exhibits contained in the first instance file that the
s 116(2) certificate was tendered, together with the payer transaction statement, as Exhibit 1 in the proceedings before the Federal Magistrate. The certificate therefore should form part of the material before us.
The application should be allowed. However, in reality this should not have been necessary because the document was already before the Federal Magistrate, and should have been included in the appeal books as per the index. Volume 5 of the books contains the exhibits and under Exhibit 1 includes the payer transaction statement, however the certificate page is omitted. An application could have been made to the Appeals Registrar, or before us at the commencement of the proceedings, to amend the appeal books. The difficulty for the Registrar was the appellant’s opposition.
Grounds of Appeal
The appellant’s amended notice of appeal contains 40 grounds. While some grounds in the appellant’s case appear to be novel in the sense that they have not been raised by him before in the same terms in other proceedings, that is most likely due to this being the first appeal against actual enforcement proceedings. It is clear that each ground is raised in the same vein as the earlier repeated challenges against the validity of the liabilities themselves, that is, avoiding payment of the debts.
We note here that the bringing of enforcement proceedings in the Federal Magistrates Court was a proper course of action, which the Registrar was entitled, and indeed obliged, to take following the suite of unsuccessful challenges by the appellant to the validity of the debt itself. Before us the appellant submitted that this Court was the “right court” to deal with his grievances, because it is a court that understands and applies “the principles of equity” rather than “formulaic calculations”. Such a submission is without foundation.
It is apparent from the notice of appeal and the extensive written and oral submissions that the appellant seeks to agitate, once again, the same constitutional challenges to the legislative scheme and the powers of the Registrar. This is clear from grounds 23, 24, and 25.
This Court is restricted to consideration of appealable error made by the Federal Magistrate in the determination of the enforcement application based on the applicable legislation. It is not for this Court, some 18 years after the appellant’s liability was first incurred and 10 years after the High Court confirmed that the scheme giving rise to that liability was constitutionally valid, to reconsider the validity of the liabilities leading to the enforcement proceedings before the Federal Magistrate. Therefore those grounds of appeal which we will consider directly are those not abandoned, and not having already been considered by other courts being decisions we regard as binding or persuasive authority.
Those grounds which have already been decided by other relevant courts in the decisions which we have set out at length in these reasons, are grounds 24 and 25 pertaining to the vesting of judicial power of the Commonwealth in the Registrar, the characterisation of child support as a tax and the constitutional validity generally of the child support assessment, registration and collection scheme. These matters were dealt with by the High Court in Luton v Lessels, and the Full Court of the Federal Court in Whittaker v Child Support Registrar [2003] FCAFC 114 and Whittaker v Child Support Registrar [2010] FCAFC 112.
To allow the appellant to re-agitate settled principles in the way he seeks would amount to an abuse of process and offends the judicial and appellate processes of courts of this country.
We note that grounds 31 and 32 assert error in relation to interim injunction orders made in 2008 and 2010. Having not appealed or sought leave to appeal from those orders and there now being final orders in place, we need not consider those grounds. As we have already mentioned, the appellant also abandoned grounds 29, 30 and 33 at the appeal hearing.
Accordingly, the grounds to which we will make reference are as follows:
Grounds 1 – 3 Lack of jurisdiction;
Grounds 5, 11, 12, 13, & 28 The application of the appellant to “strike out” the proceedings;
Grounds 6, 7, 8 & 10 Part XIII of the Family Law Act;
Grounds 9 & 9A The Form 45B and Form 46 – the summons;
Grounds 16 & 17 Limitation of Actions Act 1974 (Qld) (“the Limitation Act (Qld)”)
Grounds 18, 20, 21 21A & 22 The Cairns Magistrates Court decree; and the power of the Federal Magistrates Court to set aside an order made by the Cairns Court;
Grounds 26, 26A and 36 Identification issues;
Ground 34 & 35 The s 116 Certificate.
Reasons of the Federal Magistrate
As set out in the introduction to these reasons, the matter for determination by the Federal Magistrate was the Registrar’s application for enforcement of the child support debts owed by the appellant to the Commonwealth. The Registrar’s application was filed on 23 May 2008, at which time the appellant’s second round of challenges in the Federal Court were still on foot.
The Federal Magistrate stayed the proceedings before him on 1 August 2008, then lifted the stay on 16 April 2010 following the judgment of Dowsett J in
February 2010. The matter was heard on 30 June 2010, final submissions were received on 17 January 2011 (after the decision of the Full Court of the Federal Court), and reasons for judgment were delivered on 7 April 2011.
The appellant resisted the Registrar’s application and applied for a dismissal of the proceedings, and for the Federal Magistrate to disqualify himself. As to the latter application, the appellant has since abandoned those grounds of appeal (29, 30 and 33) relating to the alleged incapacity and bias of the Federal Magistrate. It is therefore not necessary to consider further the reasons or grounds of appeal in that regard.
The validity of the debts having been confirmed by the failure of the appellant’s challenges in the Federal Court and the High Court, the appellant’s various applications for dismissal of the proceedings were in effect the substantive issues for his Honour’s consideration. Many challenges were properly rejected on the basis of the earlier decisions of other courts to which we have referred. Other claims by the appellant were carefully considered by the Federal Magistrate and found, correctly in our view, to have no substance.
We will repeat here the parts of the reasons relevant to the grounds of appeal. It will be seen that a number of the headings used by the Federal Magistrate correspond with the issues raised by the appellant at first instance and in the appeal and directly deal with those arguments.
Respondent’s applications for dismissal of the proceedings
...
Institution of the proceedings – Contrary to s.19 of the Federal Magistrates Court Act 1999
28.At the commencement of the hearing, the respondent made an application to summarily dismiss the enforcement summonses because of the provisions of s.19 of the Federal Magistrates Court Act 1999 (hereafter “the FMC Act”). That application was heard and determined on 30 June 2010.
29.The relevant background to the application for summary dismissal is as follows.
30.On 18 February 2008 the respondent commenced proceedings in the Federal Court of Australia inter alia, in respect of the appeal of the making of a departure prohibition order.
31.A particular ground of the application before the Federal Court was that the child support liability, the basis upon which the DPO was issued, was void or, in the alternative, was nil.
32.That action was determined in the Federal Court in September 2009. The respondent appealed the decision to the Full Court of the Federal Court. The Full Court of the Federal Court delivered its decision on the respondent’s appeal to that Court on 7 September 2010. The appeal was dismissed.
33.The Federal Court action and subsequent appeal are relevant to these proceedings because on 1 August 2008 the respondent applied to the Federal Magistrates Court to transfer the enforcement summons proceedings to the Federal Court. The application was opposed by the Child Support Registrar and was refused. A stay of the proceedings was ordered pending the completion and determination of the Federal Court proceedings.
34.On 16 April 2010 an order was made on the application of the applicant lifting the stay of the hearing of the enforcement summonses and both summonses were listed for hearing on 30 June 2010.
35.In his application for summary dismissal, the applicant contended that s.19 of the FMC Act was clear in its terms and these proceedings should never have been brought in the Federal Magistrates Court whilst there were proceedings in the Federal Court. As a consequence the respondent submitted that these proceedings were, in effect, an abuse of process and should be struck out. I delivered my decision on that application on 30 June 2010.
36.The respondent contends that, due to the fact that he was not given a proper opportunity to make a submission having regard to the provisions of s.19(2) of the FMC Act, the order dismissing his application should be set aside and that he should be given an opportunity to make submissions as to the appropriateness of application of s.19(2). To fail to do so would, according to the respondent’s submissions, result in a fundamental denial of natural justice and procedural fairness.
37.Accepting that this Court has the power to set aside its orders, I am not persuaded that I ought to do so.
38.I have given reasons for my dismissal of the application by the respondent pursuant to the provisions of s.19 of the FMC Act.
39.It was the respondent’s contention that s.19 was a complete answer to the application and that the application ought to have been summarily dismissed. Although the respondent appears on his own behalf, he raised the relevance of s.19 of the FMC Act to this application. He had the clear responsibility to address all of the issues in s.19. The effect of his submission is that he only addressed the provisions of s.19(1) and was not given the opportunity to address the provisions of s.19(2). It was his application pursuant to s.19 and his responsibility to negate the provisions of s.19(2).
40.The respondent contends that the Court has an obligation to overturn its ruling upon this issue where the ruling is based upon a misapprehension of fact and to send a defendant to appeal in the face of an undisputed misapprehension of fact is a denial of natural justice and amounts to a miscarriage of justice.
41.The respondent’s submission though contends an error of law rather than misapprehension of fact in the application of s.19(2) of the FMC Act.
42.I do not consider, given that it was his application, that he was denied procedural fairness or natural justice in the way that that application was heard and determined and I am not persuaded that I ought to set aside the orders and re-determine the applications.
Applications to dismiss the enforcement summonses
43.The respondent submits that the enforcement summonses should be dismissed for a number of other reasons, namely:
a)that the Order of the Queensland Magistrates Court dated 26 May 1997 was entered irregularly and the Order should be set aside and the summons based upon that order should be dismissed;
b)there has been a failure by the Child Support Registrar in both summonses to identify the respondent as the person to whom the proceedings relate.
Setting aside the Order of the Magistrates Court of Queensland dated 26 May 1997
44.On 26 May 1997 the Magistrates Court at Cairns in Queensland made orders which provide as follows:
1.That the Respondent pay the Office of the Australian Government Solicitor at Skerman Chambers, 12 Wills Street, Townsville the costs of the Commonwealth fixed in the sum of $2,647.10 within three (3) calendar months from this date.
2.That the Respondent pay to the Deputy Child Support Registrar at Stanley Place, 235 Stanley Street, Townsville the sum of $16,514.72 within three (3) calendar months from this date.
45.The respondent submits that either:
a)this Court should set aside the orders made in the Magistrates Court at Cairns; or alternatively
b)not exercise a discretion to enforce those orders.
46.The respondent submits that the orders were entered irregularly in that:
a)the summons in the proceedings No. 30 of 1997 was not served on the respondent;
b)substituted service was not effected on the respondent in accordance with s.115 of the Registration and Collection Act;
c)an order was not made granting leave for substituted service;
d)no appearance was noted on the order;
e)in the 11 years from the making of the order and the commencement of this proceeding, the respondent was never at any time given a copy of the order until the commencement of the proceedings No BRC4659/2008;
f)the respondent did not know of the proceedings or of the order before the commencement of the proceedings No BRC4659/2008.
47.The respondent submits that his evidence on these matters is unchallenged.
48.Both the respondent and the Child Support Registrar submit that this Court has the power to set aside the order of the Magistrates Court of Queensland.
49.I am not satisfied that I have the power to set aside the orders for the following reasons:
a)The Federal Magistrates Court is not a superior Court of record and I am not aware of any power invested by the FMC Act that would allow me to set aside an order made by another Court.
b)Although there is power in this Court to set aside orders made by this Court, I am not satisfied s.15 of the FMC Act invests power to quash the order of another Court.
c)I am not aware of any provision of the Registration and Collection Act that allows me to set aside an order made in the Magistrates Court of Queensland.
50.Whilst this Court has jurisdiction in relation to matters, under both the Child Support (Assessment Act) 1989 (hereafter “the Assessment Act”) and the Child Support (Registration and Collection) Act 1988 (Commonwealth) (hereafter “the Registration and Collection Act”), I am not satisfied that either of those Acts invest power in this Court to set aside the orders of another Court exercising similar jurisdiction.
51.I do consider though that I have it, within my discretion, to refuse to exercise the discretion to enforce the order.
52.The respondent would contend that the Court should not exercise the discretion to enforce an order that was irregularly entered against him. Although I am not persuaded that the respondent was not aware of the 1997 orders until 2008 when these summonses were issued, he has nevertheless had, since 2008, the opportunity to bring an appropriate application in the Magistrates Court at Cairns to set aside the order.
53.It is a matter for the respondent to satisfy the Magistrates Court about the merits of his arguments on such an application. I am not aware of any such application.
54.In his affidavit filed in these proceedings on 20 May 2010 (paras. 50 to 53), the respondent acknowledges the commencement of the administrative assessment on 14 September 1994 and that the “alleged liability” was registered as a debt due to the Commonwealth on 9 December 1994.
55.It is important to recognise that the respondent has had knowledge of the child support liability since the application for administrative assessment was accepted in 1994. The legislation then and now provides remedies and review processes for people who want to challenge, for example, that they are a liable parent, the quantum of the assessed child support etc. The 1997 orders merely quantified the debt owing at that time under the administrative assessment. The respondent had ample opportunity to pursue whatever remedies were available to him under the legislation.
56.I am not persuaded that I have the power to set aside the 1997 order and I am not satisfied that there is sufficient justifying cause for me to exercise a discretion not to enforce that 1997 order. The respondent does not seem to challenge that he was the father of the child the subject of the assessment. I am satisfied that the respondent was well aware of the obligations for child support imposed upon him under the Assessment Act. Indeed he has stridently maintained his objection to the assessment and his affidavit sets out those objections. I am satisfied that the respondent has had every opportunity to challenge the liability raised by the 1997 orders.
Failure to indentify the respondent as the person to whom the proceedings relate
57.The Family Law Act 1975 (as amended) (by s.66C) establishes the legal duty cast upon a parent to maintain their child and thereby creates the legal obligation to pay child support.
58.A principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents. It is beneficial legislation designed to ensure that children receive a proper level of financial support from their parents.
59.The Assessment Act therefore creates and quantifies the liability and consequent debt but does not create the duty. It does not determine a question about the existence of any right or obligation. It is the fact upon which the provisions of the Assessment Act and the Registration and Collection Act operate thereby creating new future obligations (see Luton and Lessels 210 CLR 333).
60.The Assessment Act creates a personal and private obligation in the form of a debt payable by the liable parent to the eligible carer (s.31 Assessment Act). That debt is recoverable by the carer in a Court having jurisdiction to recover debts (to the quantum owed) or a Court having jurisdiction under the Assessment Act.
61.If the registered maintenance liability (including the child support assessment) is registered under the Registration and Collection Act, the debt payable by the liable party to the eligible carer is extinguished or assigned and it is replaced by a debt payable by the liable parent to the Commonwealth in accordance with the particulars of the liability entered on the Child Support Register (s.30 Registration and Collection Act).
62.When an application is made to the Child Support Registrar and accepted under the Assessment Act, the Registrar must assess the annual rate of child support payable.
63.The liability commences upon the acceptance of the application for administrative assessment.
64.Subject to s.24A(2), pursuant to s.24A(1) of the Registration and Collection Act:
Where a Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability under the Registration and Collection Act by entering particulars of the liability in the Child Support Register.
65.Under s.116(2) of the Registration and Collection Act:
The mere production of the Certificate …. signed by the Child Support Registrar, certifying that an amount specified in the Certificate was on the date of the Certificate due and payable …. to the Commonwealth to a specified registrable maintenance liability, is prima facie evidence of the matters stated in the Certificate.
66.Hence, the Register (and the production of the Certificate) provides prima facie proof of the quantum of the liability due and payable by the specified person.
67.The Federal Magistrates Court is invested with jurisdiction pursuant to s.104 of the Registration and Collection Act.
68.Section 113 of the Registration and Collection Act provides that a debt:
due to the Commonwealth under this Act in relation to a registered maintenance liability ……
b. may be sued for and recovered by:
i. the Registrar suing in his or her official name; and
c. may be recovered in:
ii. a Court having jurisdiction under this Act.
69.The procedure for the recovery of a debt in the Federal Magistrates Court is provided in Rule 25b.05.
70.The procedure for the enforcement is set out in Schedule 5 of the Rules (and adopts Order 33 of the Family Law Rules 1984).
71.Having regard to Item 2(4B) of Schedule 5 the Registrar, in seeking to enforce an obligation that is not an order of the Court, may apply to the Court for:
a.an order declaring the amount of the obligation;
b.a second order that the obligation be paid.
72.In this matter the application seeks:
a)an order declaring the amount of the debt;
b)an order that such debt be paid by the respondent in the proceedings.
73.The declaration that is sought in this matter is for the amount that is contained in the certificate produced under s.116(1) of the Registration and Collection Act (Exhibit 1 in the proceedings).
74.I propose to admit the document as a Certificate under s.116. That document merely identifies the prima facie particulars contained in the Child Support Register as to the quantum of the liability owing in relation to this matter. It is prima facie evidence only of the particulars contained in the Certificate.
75.I am satisfied therefore that there is prima facie evidence that there is an amount owing by Mark Allan Whittaker.
76.The respondent in these proceedings objects to an order being made against him on the basis that there is no evidence before the Court that he is the person to whom the liability attaches. In particular, the respondent asserts that there is no evidence to establish that he is the same person as the person named in the s.116 Certificate.
77.In this matter the legal duty to pay child support is owed by the father of the child. The Assessment Act is beneficial legislation to ensure as best can be done that children receive a proper level of financial support from their parents. I consider that if the respondent asserts that he is not the person named in the Certificate as the person to whom the liability attaches, there is at least an evidentiary onus cast upon him to provide the basis for such assertion. The respondent does not appear to dispute that he is the father of the child. He has been aware for many years that he has been identified as the person registered on the Register of maintenance liabilities as having the liability for the child support recorded on the Register. I do not know whether the respondent has challenged the fact of his being registered as being liable for child support obligations but he has had both the remedy and opportunity to have done so under the relevant legislation. It is not enough for him to simply say the Child Support Registrar cannot prove that he is the same person as that person named in the Certificate.
78.Although he disputes the constitutional validity of the Assessment Act and Registration and Collection Act for the assessment of child support, he does not appear to challenge that the quantification of that liability is inaccurate or incorrect.
79.I am satisfied that the respondent is the person named in the Certificate and the quantum of the amount owing is contained in the Certificate. I am also satisfied that the debt has not been discharged.
80.In the circumstances I am persuaded that I ought to make the declaration sought and the orders sought for the payment of those monies by the respondent.
81.I am also satisfied that he is the person who is the subject of the order of the Magistrates Court in Cairns in 1997 and that the monies payable under that order have yet to be recovered in full.
Does the Limitations of Actions Act apply?
82.The respondent contends the Limitations of Actions Act 1974 (Qld) (hereafter the “Limitations of Actions Act”) applies to Commonwealth proceedings instituted in the State of Queensland (McKain & R W Miller & Co (SA) Pty Ltd [1991] 174 CLR 1).
83.He contends further that s.10 of the Limitations of Actions Act provides that:
a) The following actions shall not be bought after the expiration of six years from the date of which the cause of action arose:
……..
d) An action to recover some recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
84.Section 10(5) provides that an action to recover a penalty or forfeiture or sum by way of penalty or forfeiture shall not be brought after the expiration of two years from the date of which the cause of action accrued. Penalty does not include a fine to which a person is liable on conviction of a criminal offence.
85.The respondent contends that these proceedings were instituted on
23 May 2008 and the relevant dates for the accrual of any debt with respect to the proceedings are 23 May 2002 for registered maintenance liabilities and 23 May 2006 for late payment penalties.86.I am not persuaded that the Limitations of Actions Act applies to these proceedings for the following reasons:
a)This issue was considered in relation to the Limitations of Actions Act 1958 (Victoria) in the matter of Child Support Registrar & Meekah [2008] FMCAfam 877. In that decision Hartnett FM refers to a number of High Court decisions and ultimately concluded that the Limitations of Actions Act in Victoria did not apply to the Commonwealth Legislative Scheme.
b)I adopt the reasoning of Hartnett FM and can find nothing in the Queensland legislation that indicates that the Limitations of Actions Act applies a time limit to bringing actions under Commonwealth Law.
The Assessment Act (prior to the commencement of the Child Support (Legislation and Amendment) Act 2001 (Act No 71) is taxation or alternatively, is forced taxation on unjust terms contrary to the Constitution and is therefore invalid
87.The respondent raised this argument as part of his response to these proceedings.
88.In his written submissions in this matter, the respondent indicated that he had placed these arguments before the Full Court of the Federal Court in his appeal against the decision of the Federal Court. In his submission to this Court dated 17 January 2011, he says that the questions put to this Tribunal are verbatim identical to the questions currently awaiting determination in the Full Court of the Federal Court.
89.Several of his grounds of appeal to the Full Court of the Federal Court related to the question as to whether there was a valid child support liability.
90.The Full Court of the Federal Court in Whittaker v Child Support Registrar (2010) FCAFC 112 said on this issue:
The Trial Judge dismissed the proceedings insofar as it sought the relief referred to in para 8 on 4 March 2009 on the basis that he had struck out the paragraphs of the amended statement of claim, including paras 24 and 25, on which that claim depended and not granted leave to replead. Paras 24 and 25 had asserted that the Assessment Act was invalid because it purported to confer a taxation power on the Registrar in contravention of s.53 and s.55 of the Constitution and a judicial power upon the Registrar in contravention of s.71 of the Constitution. The Trial Judge observed rightly, both that there was no substance in these attacks and that they had been the subject of previous proceedings brought by Mr Whittaker in 2002 which culminated in an unsuccessful application for special leave before the High Court. As has been seen the Trial Judge dismissed the proceedings insofar as it sought the relief referred to in paras 3 and 5 of the amended application on 24 June 2008 for the same reason.
The appellants assert that the issues raised in the present proceedings are different to those raised in the 2002 proceedings. We are unable to understand that this is so. In Luton v Lessels (2010) CLR 333, the High Court held that in authorising the Child Support Registrar to make assessments and determinations in relation to the collection of child support payments, the Collection Act and Assessment Act did not vest the judicial power of the Commonwealth in the Registrar contrary to Chapter 3 of the Commonwealth Constitution. The basis for that conclusion was that the Registrar did not determine existing rights and obligations but created new rights and obligations for the future. Nor the Registrar’s assessments or determinations conclusive. The appellants argue that the amendments to the Collection Act, the Assessment Act and the TA Act considered in Luton v Lessels (2010) CLR 333 save the legislation from invalidity as an impermissible conferral of the judicial power of the Commonwealth on the Registrar and that this point has not been raised before.
We are unable to see how any of the legislative amendments which were made make any significant difference to the nature of the power vested in the Registrar. In any event, the appellants have not demonstrated any error in the learned Trial Judge’s holding that they were precluded from raising these matters again.
91.During the course of the submissions in this matter, as I indicated, the respondent indicated that these were matters that were argued both before the Trial Judge in the Federal Court and on appeal. He was unsuccessful in those applications and as a consequence, I do not consider that I need to further consider this question.
As will be seen, in our view the Federal Magistrate appreciated each of the arguments raised by the appellant, dealt with them by giving careful reasons and was entirely correct.
Discussion
The appellant does raise some issues not raised in earlier proceedings or in earlier authorities, which must be considered. However, as demonstrated in the course of submissions for the respondent Registrar, the appellant has failed to make submissions or refer to evidence in support of many of the grounds which he raises in the amended notice of appeal. As we have already said, those grounds insufficiently supported will accordingly not be considered.
In written submissions, both parties sought to group the appellant’s grounds of appeal. The order of the appellant’s groupings reflect what can be inferred as his perceived strength of arguments, with the constitutional challenges at the beginning. Ten out of 21 pages of the appellant’s written submissions were dedicated to these grounds. The submissions of the respondent Registrar more helpfully grouped the complaints, and as we consider these groupings to accurately and fairly reflect the essence of the appellant’s grounds, we will address each group accordingly.
It should also be remembered that at this point we are considering whether leave should be granted.
Grounds 1-6: Jurisdiction
Grounds 1 and 3 assert that the Federal Magistrate erred in determining that the Court had jurisdiction to determine the enforcement application. The argument in support of this claim was that the Federal Magistrate did not have jurisdiction under the Family Law Act to enforce the decree made at the Cairns Magistrates Court, because the decree had not been registered in the Federal Magistrates Court in accordance with regulation 17(1) of the Family Law Regulations Cth (2004) (“the Family Law Regulations”). This, it was said, is a precondition to its enforcement in that Court under s 105(2) of the Family Law Act. Regulation 17(1) provides, “[a] decree … may be registered in any court having jurisdiction under the Act by filing a sealed copy of the decree in that court.”
In oral submissions the appellant argued that the order had not been produced, was unregistered, or that it was unclear whether the Federal Magistrate had it before him. It was his submission that the matter turns entirely on the validity of the Cairns Magistrates Court order.
For the respondent Registrar it was submitted that the decree had been registered in accordance with the Family Law Regulations as required by the Act, because a sealed copy of the orders from the Cairns Magistrates Court was an annexure to an affidavit filed in the enforcement proceedings in the Federal Magistrates Court. A sealed copy of that affidavit was included in the appeal books (affidavit of David Badke AB 2:160).
In our view that is a complete answer to the contention.
Grounds 2 and 4 complain that the Federal Magistrate erred in finding the Court had jurisdiction to adjourn the matter, or in continuing to exercise jurisdiction after dismissing the application to transfer the matter to the Federal Court. It is the appellant’s contention that the Federal Magistrates Court had only “conditional jurisdiction” by virtue of the matter being considered concurrently in the Federal Court. We were referred to s 19(1) of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”), which provides that proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court. Subsection (2) of s 19 provides however, that this restriction does not apply to proceedings instituted under certain parts of the Family Law Act which pertain to the consequences of failure to comply with orders and other obligations that affect children, and the enforcement of decrees.
It was submitted by senior counsel for the Registrar that, if these grounds relate to the refusal of the Federal Magistrate in August 2008 to transfer the matter to the Federal Court and instead to stay the enforcement proceedings until the Federal Court proceedings had concluded, then the appellant could not complain about that decision. Mr Whittaker is three years out of time and makes no application for leave to appeal, despite referring to the orders in the notice of appeal. It was further submitted that if the grounds concerned the orders the subject of the appeal, the appellant should also be precluded from pursuing the ground because he had made no further application for the transfer of the matter to the Federal Court. The only applications of Mr Whittaker before the Federal Magistrate were for dismissal – a “strike-out” of the proceedings altogether.
The Cairns Magistrates Court decree was registered pursuant to the Family Law Regulations, and that decree being within the plain meaning of both “orders, and other obligations, that affect children” and “decree” under
s 19(2)(b)(i)), the appellant’s argument cannot succeed on the submissions made.
Grounds 5, 11, 12, 13, 28: appellant’s s 19 “strike out” application
In these grounds the appellant challenges the Federal Magistrate’s failure to find that the enforcement proceedings were contrary to s 19 of the Federal Magistrates Act.
The strike out application was heard together with the enforcement summons on 30 June 2010. Reasons for dismissing the application were delivered on that day. As we have mentioned, those orders have not been appealed nor has leave been sought in an effort to do so. In the reasons for judgment delivered
7 April 2011, the Federal Magistrate addressed the matter again, following further complaint and written submissions by the appellant about the dismissal decision, after the hearing but before the final reasons for judgment were delivered.
The appellant alleges that the Federal Magistrate erred at law because he considered the application without first determining whether the Cairns Magistrates Court decree had been registered in the Federal Magistrates Court and in any event did not put this issue to the appellant. It is further alleged that the Federal Magistrate made an error of fact because the decree was not so registered. We have already dealt with that argument which is clearly incorrect.
A general complaint is made that his Honour dismissed the application before the appellant had been given a “full” opportunity to agitate his grounds. On this basis, the appellant says the Federal Magistrate was able to, and ought to have, later overturned his own decision.
In response, the Registrar relied on the submissions outlined in the previous grounds (1 to 6) as to jurisdiction of the Federal Magistrates Court to hear the matter and as to the registration of the Cairns Magistrates Court decree. It was also submitted that the appellant had consumed a significant amount of Court time with s 19 arguments at the hearing of the applications on 30 June 2010, and provided further written submissions seeking that the Federal Magistrate overturn his earlier decision. Counsel for the Registrar referred to the reasons for judgment commencing at paragraph 28, where his Honour again set out the contentions raised by the appellant both at the hearing of the application, and after reasons were delivered on 30 June 2010 for the orders dismissing that application.
The appellant did not appeal from the decision on 30 June 2010 dismissing his strike-out application, and he is therefore precluded from seeking to overturn that order now without leave, which has not been sought. In any event, having found that the Cairns Magistrates Court order was in fact registered in the Federal Magistrates Court and the appellant clearly having been given multiple and lengthy opportunities to be heard on the matter, there is no merit in these grounds of appeal.
Grounds 6, 7, 8, 10: Part XIII of the Family Law Act
These grounds repeat in various forms the same contention: that the Federal Magistrate erred in finding that the enforcement proceedings commenced by the Registrar were validly instituted under Part XIII (enforcement of decrees) of the Family Law Act. In his written submissions, the appellant provided no specific arguments in respect of this challenge.
It was submitted for the Registrar that these grounds were a general and unsubstantiated attack that the proceedings were not commenced under Part XIII of the Act within the meaning of s 19(2) of the Federal Magistrates Act. Having already made lengthy submissions in relation to s 19(2) and the jurisdiction issue, it was submitted briefly that:
“[t]he legislature clearly intended that s 19(2)(b)(ii) would operate as an exception in respect of all proceedings instituted in the [Federal Magistrates Court] under any provisions contained in Part XIII [of the Act]”.
(emphasis in original)
Further it was said that:
“the proceedings before the [Federal Magistrate] were instituted pursuant to ss 109A and 109B (which were enacted explicitly in light of the conferral of jurisdiction on the Family Court under the [Registration and Collection Act]) and Order 33 of the Family Law Rules 1984”.
This submission is clearly correct.
Having raised no substantive arguments under these grounds, which merely constitute a reformulated attack on the exercise of jurisdiction by his Honour which has already been dealt with, these grounds cannot succeed.
Grounds 9, 9A : the summons forms
Grounds 9 and 9A assert that the Federal Magistrate erred in finding a prima facie case for enforcement existed under the two summonses prior to making a decision in relation to the validity or effect of the Cairns Magistrates Court order and the other alleged debt. Once again, no specific submissions were directed to this point, but rather the appellant grouped these grounds with arguments about the validity and registration of the Cairns Magistrates Court order.
Senior counsel for the respondent Registrar submitted that Exhibit 1 in the enforcement proceedings was prima facie evidence of the debt owed. This was the finding of the Federal Magistrate.
In oral submissions, the appellant argued that there was no utility in the certificate, that there was nothing to prove the Mr Mark Alan Whittaker named on the face of the document was he and that the debt was in fact owed by him. The document was said to be invalid because it does not contain a tax file number. The appellant submitted that it is the tax file number, not the person, that owes the liability. Mr Whittaker told us that he does not have a tax file number.
Exhibit 1, the s 116(2) Certificate signed by the Chief Operating Officer of the Child Support Agency, states:
I hereby certify that the following amounts totalling $44,069.58 are due and payable by Mr Mark Alan Whittaker and remain unpaid as at the 30th Day of June 2010 in respect of registered maintenance liabilities:
·Child support debt $15,603.30
·Penalties of $28,466.28
This amount is payable to the Commonwealth in relation to a registrable maintenance liability under section 30 (child support debt) and section 67 (penalties) of the Child Support (Registration and Collection) Act 1988.
Section 116(2) of the Registration and Collection Act provides that:
The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.
The intention of the legislation is clear. There is no reason to suggest the “Mr Mark Alan Whittaker” named is not the appellant or that the debts were not registered. Nor has anything been put to us by the appellant to plausibly suggest that may not be so. We accept the oral submissions of senior counsel for the Registrar, that absent compelling, persuasive evidence that the s 116(2) certificate could not be relied on it is prima facie evidence of the debt having been entered in the Register and being owed by the named appellant.
Grounds 15, 34, 35: s 116 certificate & unreasonable exercise of discretion
These grounds challenge the validity of the debts the Registrar sought to enforce, by asserting that the Federal Magistrate erred in accepting that the Exhibit 1 certificate had issued under s 116(2) and complaining generally that the Federal Magistrate’s finding that the two debt sums were owed was an unreasonable exercise of his discretion. The extent of submissions in support of these grounds was that “[t]he discretion to make the orders was unreasonable and the Court should grant leave and allow the appeal.”
Counsel for the Registrar submitted again that the s 116(2) certificate naming the appellant, was prima facie evidence of the debt owed according to s 116(2). We were referred also to certain excerpts from the transcript, where the appellant accepted in cross-examination that the debts existed and gave evidence from which it can be clearly inferred that he was aware of the debts in 1997.
No error has been demonstrated.
Grounds 16, 17: Limitation of Actions Act1974 (Qld)
Grounds 16 and 17 assert that the Federal Magistrate erred in finding that the Limitation Act (Qld) did not apply a time limit to bringing actions under Commonwealth law generally, and did not apply a time limit to enforcement of a child support liability specifically.
The appellant submitted that it would be illogical if an order of a Queensland Court subject to time limitations in that Court, is not subject to the same limitations when sought in a Commonwealth court. It was submitted that the limitation period on the order in the Queensland jurisdiction was the reason the respondent Registrar had sought to initiate enforcement proceedings in the Federal Magistrates Court. It was further submitted that Queensland law is expressly applicable to proceedings in Commonwealth jurisdiction unless the contrary intention appears, and that there are no conflicting provisions in the child support legislation that would render Queensland law not applicable.
Counsel for the respondent Registrar correctly suggested that we do not need to deal with the broader question of limitations generally. In respect of whether the Limitation Act (Qld) applied to the recovery of child support debts arising under the Registration and Collection Act, a range of arguments were advanced in support of the Federal Magistrate adopting the reasoning in Child Support Registrar v Meekin (2008) 224 FLR 27. Reference was made to the legislative scheme as a whole, which was said to be “complete on its face”, leaving no room for the operation of the Limitation Act (Qld), in the same way as the income tax collection scheme considered by the High Court in DeputyCommissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55. It was submitted that, as held in that case, to consider otherwise “would significantly undermine the scheme for collection and recovery of [child support]”.
Particular reference was made to s 109A(4) of the Family Law Act (s 109A providing the rules of court in relation to enforcement of the Registration and Collection, and Assessment Acts) which states that “[a] reference in paragraph (2)(c) to a failure to pay an amount [whether pursuant to an order or directly under the Collection Act] is a reference to any such failure irrespective of the length of the period during which the failure has continued…”. This provision is said to specifically contemplate that enforcement of child support debts arising from orders and decrees, or directly under the Collection Act, would not be subject to any limitation period.
The assertions of the appellant are rejected.
Grounds 18, 19, 20, 21, 21A, 22: the Cairns decree & power of the Federal Magistrates Court to set aside
The appellant here again makes general assertions about the validity of the Cairns Magistrates Court decree and the Federal Magistrate’s treatment of it. He submitted that the finding that the decree was not irregular and/or not setting it aside was an unreasonable exercise of his Honour’s discretion. An alternative argument appears to be that his Honour erred in determining that he had no power to set aside the order.
The submissions in relation to these grounds focussed on the evidence which allegedly demonstrated that the appellant had not been served with the originating process which led to the making of the order, and that he was not provided with a copy of the order once made. The appellant went so far as to say that “the irregularities are so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside.”
In response, senior counsel for the Registrar relied on the submissions made before the Federal Magistrate, which were accepted, that the Federal Magistrates Court had jurisdiction to entertain the application to quash the 1997 order. It was emphasised however, that whether or not the Court ought exercise its discretion in favour of the appellant was another issue (AB 643). Accordingly in the written submissions before us, it was conceded that ground 20 complaining that the Federal Magistrate erred in determining there was no power to set aside the Cairns Magistrates Court order was made out.
The thrust of the Registrar’s submissions was that the appellant, on his own evidence, was aware of the prosecution either prior to or not long after the Cairns Magistrates Court decree was made and despite this, took no steps to exercise his right of appeal to the Family Court. Of course, this is the point relied on in earlier decisions to which we have referred.
In the written submissions before us it was submitted, correctly in our view, that notwithstanding ground 20 being made out, no jurisdictional error had been demonstrated with respect to the Cairns Magistrates Court decree, and that his Honour’s discretion did not miscarry.
The Federal Magistrate explained in his reasons for judgment that he was not satisfied he had power to set aside the Cairns Magistrates Court order. Even if this was an error on the part of his Honour, in the circumstances it cannot be said that his Honour erred by refusing to exercise the discretion to set aside the order. The complaints of the appellant in relation to the irregularities of service and the proper registration of the order were all acknowledged and, in our view, properly dismissed by his Honour after careful consideration. Such a decision was well within the reasonable range of discretion exercised by his Honour.
Ground 19 suggested that the Federal Magistrate erred in determining that the appellant was the person subject to the Cairns Magistrates Court order. No written or oral submissions were provided on this point.
Ground 21A also complained that the Federal Magistrate erred in finding that the appellant had every opportunity to challenge the liability arising from the Cairns Magistrates Court order. The appellant did not detail written submissions for this ground. In response, it was submitted for the Registrar that his Honour’s reasoning at paragraphs 54 to 56 (setting out when the appellant first had knowledge of the commencement of an administrative assessment in 1994, the quantification of the debt in 1997, and the “ample opportunity” the appellant had to pursue the remedies that were open to him under the legislation at all times), discloses no appealable error.
Senior counsel for the Registrar emphasised in oral submissions that at no stage since the declaration of the debt by the Cairns Magistrates Court had the appellant descended into a dispute as to the liability amount named by that declaration, or as to the amounts named as further incurred liabilities and penalties on the s 116(2) certificate. We infer from these submissions that never having cavilled with the calculations and mathematics of the debts sought to be enforced, and having failed in other validity and jurisdictional challenges, the matter before his Honour was a straightforward determination of an enforcement application.
Senior counsel referred to the decision of the Full Court (Nicholson CJ, Fogarty & Kay JJ) in Deputy Child Support Registrar and Harrison (1996) FLC 92-656. We consider the conclusions of the Full Court in that case bear repeating here:
1. Where a stage 1 order has been registered for collection by the agency, the registrar may seek to enforce it by either suing in a court exercising STATE civil jurisdiction or seeking the issue of a FORM 46 enforcement summons under the RULES.
2. Where a judgment is obtained in a STATE civil court for moneys due under the registered stage 1 order, the registrar may seek to recover any unpaid portion of the judgment that relates to arrears of maintenance (as distinct from penalties or costs) by means of a FORM 46 summons in any court exercising Family Law Act jurisdiction.
3. (Semble) Where the registrar seeks to enforce a registered stage 2 liability that arises by reason of an administrative assessment that has been varied by court order the procedures referred to in pars 1 and 2 are available.
4. (Semble)Where the registrar seeks to enforce a registered stage 2 liability that arises by reason of an administrative assessment that has not been varied by court order the assessment may be sued for in the civil courts or a FORM 45B summons may be relied upon. To the extent the debt is not recovered in the civil proceedings, the FORM 45B procedure remains available.
5. (Semble) A custodial parent may enforce an unregistered stage 2 liability in the same manner as the registrar, although there is no express power in O 33 enabling such a party to seek the issue of an appropriate summons. The RULES require amendment to provide for enforcement by a party entitled to recover moneys by operation of s 79 of the [Assessment Act].
(emphasis in original)
We would emphasise once again the nature of the proceedings before the Federal Magistrate as enforcement proceedings, which followed a swathe of earlier proceedings in which the appellant had the right, and exercised that right, to challenge the validity of the debt from which each liability arose. He complained on each occasion that the scheme was invalid because it did not provide a right of review, yet that was precisely the right he was exercising and which was carefully considered by multiple judicial officers in the Federal Court and High Court challenges.
Leave to File and rely on Further Written Submissions
The appeal was heard on 31 May 2012. The appellant’s written submissions spanned 21 pages and his oral submissions approximately two hours. Judgment was reserved, and subsequent to the hearing, the appellant attempted to file further written submissions on two occasions. The first document entitled “Appellant’s Supplementary Submissions” was filed on 25 June 2012. This consisted of 15 pages of written material and approximately 35 pages of annexures. No application for leave to file the further submissions was made, nor was any explanation or reason given for why leave should be granted.
We allowed the appellant to file the further submissions, for the purpose only of serving a sealed copy on the respondent Registrar, who we directed to file and serve short submissions as to whether the appellant should be granted leave to rely on the further material.
The Registrar opposed the application and filed written submissions on
16 July 2012 outlining why leave should not be given. The submissions referred to a number of High Court and Federal Court authorities which emphasise that the time for submissions is prior to and at the hearing, not after (Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 258, Re Chief Commissioner of Police (Vic) (2005) 214 ALR 422 at [54], Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [29], Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [70] to [71]).
The proper course, it was submitted, is for leave not to be granted. It was said that the appellant had an opportunity to make and did make, prior to and at the hearing, extensive written and oral submissions. It was correctly observed that the appellant had not offered a proper explanation as to why he sought to file further submissions, and there was no material before the Court to suggest that these are exceptional circumstances to displace the presumption that no written submissions should be filed in appellate proceedings after the hearing without first obtaining leave of the Court.
On 8 November 2012, the appellant filed an application in an appeal, expressly seeking leave to file and read his further written submissions dated
26 June 2012. Filed together with that application was an affidavit sworn by the appellant. We again permitted the appellant to file the material in order to serve a sealed copy on the respondent Registrar, and provided for the Registrar to file any material they would wish to in response by 26 November 2012.
The Registrar filed a response to the application on 26 November 2012. The Registrar opposed the application on the basis that the submissions did not raise any new point that was not otherwise canvassed by the parties before or at the hearing before the Full Court on 31 May 2012. The Registrar’s written submissions of 16 July 2012 were otherwise relied on.
The following reasons were given by the appellant in his affidavit as to why he should be granted leave to rely on the further submissions.
a.At the hearing of the appeal on 31 May 2012 the respondent made an application for orders, inter alia, that Exhibit No. 1 of Volume 5 of the Appeal Books (List of Exhibits) in Appeal No. NA36/2011 be amended to include a copy of the document entitled “CERTIFICATE UNDER SUB-SECTION 116(2) OF THE CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988”.
b.The substantive submissions filed by the respondent in the Appeal were put before the Full Court and presented in a manner that could carelessly and recklessly influence the Court to draw incorrect conclusions of law.
c.There was insufficient time provided or alternatively the time constraints on the Court at the hearing of the Appeal influenced me to cut short my oral submissions.
d.It is more beneficial and more time effective to the Court to have a self litigant put submissions in writing rather than continue to make them orally without resources or assistance
e.In terms or [sic] natural justice it is reasonable for a self litigant to put submissions on a matter raised in application at a trial in writing rather than to make them orally so as to have time and ability to access resources otherwise unavailable during a trial.
In addition to reasons for granting leave, the remaining 14 pages of the appellant’s affidavit filed 8 November 2012 contain extensive written submissions, which resubmit many of his points about the chronological history of the matter and his understanding of various principles of law, and engage with written submissions of the respondent Registrar from
January 2012 and the Registrar’s solicitor’s affidavit of 17 May 2012 in relation to the certificate.
The further written submissions of the appellant filed 26 June 2012 summarise and expand on the oral submissions made by him at the appeal hearing in relation to the validity of the s 116(2) Exhibit 1 certificate, the unlawful obtaining of a tax file number, and the identification of him as the payer liable to pay the debts. The appellant also sought to reply to the respondent Registrar’s submissions on the child support scheme as a taxation regime, and to again make complaints about deficiencies of the signature on one of the originating summons. The appellant also used the submissions to claim that the respondent Registrar’s legal representatives had made careless and reckless submissions to the point of misconduct, and to make sweeping statements about justice, equity, social anarchy and disorder.
We are not prepared to grant the appellant leave to rely on his further submissions as contained in the written submissions filed 26 June 2012 or his affidavit filed 8 November 2012. As mentioned, the appellant filed written submissions prior to the hearing to the length of 21 pages (double what is allowed by the Family Law Rules), and made oral submissions for two hours at the hearing on 31 May 2012. At that time he made extensive oral submissions in relation to the s 116(2) certificate, as he had had prior notice of the respondent Registrar’s application filed 17 May 2012. We reject the appellant’s claim that insufficient time was provided to him at the appeal hearing, or that time constraints influenced him to “cut short” his oral submissions.
We emphasise that we have read and considered the further submissions and are confident that nothing contained therein would affect our decision which is based on the already extensive written and oral submissions of the appellant. We also accept the submissions of the respondent Registrar as to the unfairness in appellate proceedings which would follow if we were to grant leave absent exceptional circumstances. There is no utility in allowing the appellant leave to rely on his further written submissions.
Conclusions
There is no substance in any of the grounds of appeal agitated by the appellant. The appellant has not demonstrated an error of principle, nor has he established that the decision of the Federal Magistrate would visit a substantial injustice upon him such that leave should be granted (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170). Leave is therefore refused, and it is consequently unnecessary to deal further with the appeal.
Costs
Senior counsel for the respondent Registrar submitted that an order for costs should be made if the appeal fails. It was submitted that the Registrar could have sought costs on an indemnity basis as this was a borderline abuse of process case, given the repetition of arguments and re-arguing of matters which have failed elsewhere. It was submitted however that costs on a party-party basis would be contended for.
It was sensibly submitted by the appellant that should the appeal fail, he could not reasonably resist an order for costs. Of considerable interest he also said that his financial circumstances would not prevent him from meeting such an order.
The Registrar also sought that appellant pay the Registrar’s costs of and incidental to the application to adduce further evidence filed 17 May 2012. As we have identified, in advance of the appeal hearing the Registrar sought the appellant’s consent to include the relevant material in the appeal book and there was no reasonable basis on which the appellant could have resisted the further evidence application.
The Registrar also sought the costs of responding to the application for leave to file further submissions filed 8 November 2012. That application having been refused as largely unjustified and entirely without merit, the appellant should pay the respondent Registrar’s costs.
It will be ordered that the appellant pay the respondent Registrar’s costs of the appeal and of the two applications in an appeal, to be assessed.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 December 2012.
Associate:
Date: 7 December 2012
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