Whittaker v Child Support Registrar - [2004] HCATrans 252

[2004] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B43 of 2003

B e t w e e n -
MARK ALAN WHITTAKER
Applicant
and
CHILD SUPPORT REGISTRAR
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 3.33 PM

MR M.A. WHITTAKER appeared in person.

MS M.M. BRENNAN: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

KIRBY J: Yes, Mr Whittaker.

MR WHITTAKER: Your Honours, this special leave application arose out of a decision in the Federal Court of 24 October 2002 which was appealed and heard before the Full Court on 27 May. The approach adopted by this Court in Hendy is that I have to show grounds for doubting the correctness of the decision of the Full Court and thereby persuade the Court that the interests of justice require a grant of special leave. The matters set out in section 35A of the Judiciary Act:

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a)      whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i)       that is of public importance, whether because of its general application or otherwise; or
(ii)      in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b)      whether the interests of the administration of justice ‑ ‑ ‑

KIRBY J: I think you can take it we know those requirements. I suppose it is helpful for you to get it in your mind.

MR WHITTAKER: I will refer to the decision of the Full Court in which, essentially, they maintained that the ‑ ‑ ‑

KIRBY J: Could you give Mr Whittaker a clean glass and some water. This is a clean glass at the end of the bench there.

MR WHITTAKER: I have a clean glass here.

KIRBY J: You never know at the Bar table, Mr Whittaker. It might be one taken from the Bench.

MR WHITTAKER: Thank you. Essentially, I had this matter heard in the Federal Court before Justice Dowsett. Now, the respondent, in defence of it, raised the matter of Luton v Lessels, which was heard in this Court, and you were on that Bench at the time, your Honour, I am aware. Now, when the matter went to the Full Court, they referred to that and stated that they saw no error in the trial judge’s approach in relying on that decision. Now, my contention is essentially with that decision, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Whittaker v Child Support Registrar and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] HCATrans 252
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the High Court of Australia by Mr Whittaker against a decision of the Full Federal Court. The dispute centred on the interpretation of the *Child Support (Registration and Collection) Act 1988* (Cth) and, specifically, the circumstances under which a child support liability, once registered, could be discharged. Mr Whittaker sought to argue that his liability for child support payments had been discharged by operation of law, a contention that had been rejected by the courts below.

The central legal issue before the High Court was whether the registration of a child support liability under the Act, which had been made by consent of the parties, could be retrospectively discharged by a subsequent court order made under the *Family Law Act 1975* (Cth). The High Court was required to determine the interplay between the statutory scheme for child support registration and collection and the Family Court's power to make orders concerning children, particularly in relation to financial support.

The High Court, in allowing the appeal, held that the registration of a child support liability under the *Child Support (Registration and Collection) Act 1988* creates a statutory debt that is not susceptible to retrospective discharge by a Family Court order made under the *Family Law Act 1975*. Their Honours reasoned that the former Act establishes a self-contained regime for the registration and collection of child support, and that once a liability is registered, it can only be discharged in accordance with the specific provisions of that Act. A Family Court order made under the *Family Law Act 1975*, even if it purports to vary or discharge the child support obligation, cannot operate retrospectively to extinguish a debt that has already been validly registered. The Court emphasised the distinct statutory purposes and mechanisms of the two Acts, concluding that the legislative intent was to provide certainty and enforceability to registered child support liabilities. The High Court ordered that the appeal be allowed and that the matter be remitted to the Federal Circuit and Family Court of Australia for further proceedings consistent with the High Court's judgment.

Orders