Williams v Child Support Registrar
[2009] FMCA 481
•22 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILLIAMS v CHILD SUPPORT REGISTRAR | [2009] FMCA 481 |
| ADMINISTRATIVE LAW – Appeal against Departure Prohibition Order – whether Departure Prohibition Order wrongly made – whether child support liability – Registrar’s satisfaction and requisite belief. |
| JURISDICTION – Federal Magistrates Court exercising jurisdiction in Western Australia – whether jurisdiction to vary child support assessment. |
| CONSTITUTIONAL LAW – Whether constitutional right or freedom of movement– validity of power to make Departure Prohibition Order – marriage power – referral and adoption power – federal child support laws adopted in Western Australia – incidental power - emigration power – power to prevent a person departing Australia. |
| Child Support (Adoption of Laws) Act 1990 (WA), s.5 Child Support (Assessment) Act 1989 (Cth), ss.91A, 99(1), 116(1)(b) Child Support (Registration and Collection) Act 1988 (Cth), ss.3(1)(a) & (b), 30, 71, 71D, 72D, 72E, 72K, 72Q, 72S, 110B, 110C, 110D Constitution (Cth), ss.51(xxi), (xxvii), (xxxvii) and (xxxix),117 Family Law Act 1975 (Cth), s.40A Federal Magistrates (Consequential Amendments) Act1999 Federal Magistrates Court Rules 2001 (Cth), r.25A.06(2) Judiciary Act 1903 (Cth) s.78B |
| Air Caledonie International v Commonwealth (1988) 165 CLR 462 M Groves (Ed), Law and Government in Australia (Sydney: Federation Press, 2007) |
| Applicant: | PAUL MONTAGUE WILLIAMS |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | PEG 21 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 21 April 2009 |
| Date of Last Submission: | 21 April 2009 |
| Delivered at: | Perth |
| Delivered on: | 22 May 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms L.B. Price |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application, and the appeal under s.72Q of the Child Support (Registration and Collection) Act 1988 (Cth), are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 21 of 2009
| PAUL MONTAGUE WILLIAMS |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This application concerns an application in relation to a child support assessment, and an appeal under s.72Q of the Child Support (Registration and Collection) Act 1988 (Cth)[1] from a decision of the Child Support Registrar[2] on 20 October 2008 to issue a Departure Prohibition Order[3] under s.72D of the CS (R&C) Act, in respect of the applicant.
[1] “CS (R&C) Act”.
[2] “Registrar”.
[3] “DPO”.
The applicant filed an application in this Court on 20 February 2009 in which he sought:
a)the removal of the DPO against him; and
b)the sum of $6,000 paid by him to his former partner to be credited to his child support account.
The applicant filed an amended application on 30 March 2009, in accordance with Orders of the Court dated 3 March 2009. In the amended application the applicant effectively sought orders in the following terms:
a)the variance of a child support assessment issued against him;
b)the removal of a DPO against him; and
c)the sum of $6,000 paid to his former partner, to be credited to his child support account.
The Registrar sought orders dismissing the application and the appeal, with costs.
Issues
There are three issues raised in this matter, namely:
a)whether the applicant has a constitutional right or freedom of movement into and out of Australia and, if so, whether s.72D of the CS (R&C) Act is invalid;
b)whether this Court exercising jurisdiction in Western Australia has jurisdiction to vary a registered child support assessment; and
c)whether the DPO in respect of the applicant should be set aside.
Constitutional right or freedom of movement
Validity of section 72D of the CS (R&C) Act raised
Section 72D of the CS (R&C) Act provides as follows:
(1)The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a)the person has a child support liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i) child support debts arising from a registrable maintenance liability under section 17; or
(ii)…; or
(iii)…
(d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii) making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
(2)For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:
(a)the capacity of the person concerned to pay the debt or debts;
(b)the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c)if subparagraph (1)(c)(i) applies – the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
…
(d)such other matters as the Registrar considers appropriate.
(3) A departure prohibition order must be in the approved form.
The applicant claims that the issuance of a DPO under s.72D of the CS (R&C) Act, preventing him from leaving the country, is in breach of an alleged constitutional right or freedom of movement and, from which, the Court infers that the applicant asserts that s.72D of the CS (R&C) Act is invalid.
The DPO prohibits the departure of the applicant from Australia for a foreign country without his first wholly discharging his child support liability or making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
There was no evidence advanced that the DPO was not issued in accordance with s.72D of the CS (R&C) Act.
Section 78B notices
Section 78B of the Judiciary Act1903 (Cth)[4] provides as follows:
(1) Where a cause pending in a federal court… involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
[4] “Judiciary Act”.
In this case, s.78B Judiciary Act notices were issued by the applicant to the Attorneys-General, in accordance with the Orders of this Court dated 3 March 2009. No Attorney-General responded saying that they intended to intervene at this stage.[5]
[5] Transcript at p.10.
A mere assertion that a cause involves a matter arising under the Constitution is not sufficient to establish that fact.[6] The Court must be satisfied that there is a cause which involves a constitutional question.[7] As the Federal Court has observed:
Where … there is a real and substantial constitutional issue, the Court’s duty is plain. For where there is such a question it goes to the authority of the Court to continue with the proceeding and so has something of the character of a jurisdictional issue. In this particular case there is the additional and practical concern that the constitutional question affects the statutory basis for the application… Quite independently of sec 78B, the constitutional question is a threshold issue and cannot be avoided.[8]
[6] Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 per Toohey J.
[7] CNH Capital Australia Pty Ltd v Pratley (No. 1) [2009] FMCA 454 at para.28 per Lloyd-Jones FM, citing Australian Litigation Fund Pty Ltd v Mearns (No. 3) [2005] FMCA 1870 at paras.11-14 per Barnes FM.
[8] ACCC v CG Berbatis Pty Ltd (1999) 95 FCR 292 at 300 per French J; [1999] FCA 1151 at para.22 per French J.
The constitutional issue in this case might involve the question of the validity of s.72D of the CS (R&C) Act. That constitutional issue might in this matter, at first blush, be said not to be “real and substantial” but it is not inconvenient for the Court to deal with it as a threshold question.
The applicant’s argument
The applicant advances an assertion of a constitutional right or freedom of movement, and, in particular, the freedom to move out of, or leave, Australia.
As to the alleged constitutional right or freedom of movement, the applicant referred the Court to s.117 of the Constitution, which reads as follows:
117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.
The applicant asserted that the intention of s.117 of the Constitution is that all Australians have not only a right to freely move within Australia, but also a right to leave and return as they feel fit.[9]
[9] Transcript at p.10.
Section 117 of the Constitution however deals with the rights of residents of states to be treated equally or without discrimination between states. It is directed at “discrimination on the basis of residence of a different State”[10] rather than any question of freedom of movement. And, even if it proscribed freedom of movement between states, it does not preclude prohibition on the departure of citizens from Australia, which at least on the face of it is within the power of the Commonwealth to deal with under s.51(xxvii) of the Constitution, the emigration power.[11]
[10] G Moens & J Trone, Lumb & Moens’ The Constitution of the Commonwealth of Australia Annotated (7th Edn) (Chatswood: LexisNexis Butterworths, 2007) at page 420, para.[806].
[11] As to which see paras.37-40 below.
The applicant also referred to a 1988 proposal for amendments to the Constitution contained in the Final Report of the Constitutional Commission, one such proposed amendment being that:
Every Australian citizen has the right to enter, remain in or leave Australia. [12]
[12] Final Report of the Constitutional Commission, (Vol. 2) (Canberra: Australian Government Publishing Service, 1988) at p.1087.
The proposed amendments remain just that, and no effective rights are afforded by them.
The applicant’s arguments therefore fail, but it is appropriate to give the constitutional issue raised more detailed consideration.
Section 72D – head of power
Section 72D of the CS (R&C) Act relies, at least, on the heads of power under s.51(xxi), (xxxvii) and (xxxix) of the Constitution for its validity.[13]
[13] Luton v Lessels & Anor (2002) 210 CLR 333 at 340-341 per Gleeson CJ and 364 per Kirby J; [2002] HCA 13 at para.6 per Gleeson CJ and para.92 per Kirby J.
Section 51(xxi) of the Constitution gives the Commonwealth Parliament power to make laws with respect to “marriage”.
Section 51(xxxvii) of the Constitution gives the Commonwealth Parliament power to make laws with respect to:
matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose parliaments the matter is referred, or which afterwards adopt the law
In this case the Parliament of the State of Western Australia has adopted the CS (R&C) Act.[14]
[14] Child Support (Adoption of Laws) Act 1990 (WA), s.5, and subsequent Western Australian legislation adopting legislative amendments to the Commonwealth child support legislation.
Section 51(xxxix) of the Constitution gives the Commonwealth Parliament power to make laws with respect to:
matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.
Section 72D of the CS (R&C) Act is on its face constitutionally valid as enacted under these heads of power. However, the issue which arises from the very general submissions made by the applicant, must include whether s.72D of the CS (R&C) Act infringes any implied constitutional right or freedom of movement.[15]
[15] The Court has referred to a constitutional right or freedom of movement in these Reasons for Judgment. It is unnecessary for present purposes to determine whether it is a right or a freedom, or to deal with the freedom – right dichotomy, but as to that issue, see generally HP Lee, “The “Reasonably Appropriate and Adapted” Test and the Implied Freedom of Political Communication” in M Groves (Ed), Law and Government in Australia (Sydney: Federation Press, 2007) at pages 78-80, and L Zines, The High Court and the Constitution (5th Edn) (Sydney: Federation Press, 2008) at pages 549-550.
Justification for and limitation of a constitutional right or freedom of movement
The justification for a constitutionally implied right or freedom of movement of a general and unlimited character is:
… distinctly lacking. It is inconceivable … that the Constitution implicitly puts at risk (subject to considerations of proportionality, etc) a significant range of routine Commonwealth and State laws merely because in particular ways, they limit either freedom of movement or else the making of choices within that freedom … instance criminal laws authorising or requiring incarceration, curfew provisions, some forms of town planning and road traffic legislation, and statutes which exclude or regulate entry on real property, public transport etc.[16]
[16] Higgins v Commonwealth (1998) 79 FCR 528 at 534-535 per Finn J (“Higgins”). See also Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 at 45 per Brennan CJ and at 157 per Gummow J (“Kruger”).
In the present context, any constitutional right or freedom of movement is thus limited, and seemingly limited to that:
a)arguably arising from “national citizenship” as a consequence of federation;[17] or
b)implied as a consequence of the right or freedom of political communication.[18]
It is convenient to deal with the latter first.
[17] Discussed in Higgins at 535 per Finn J, and which may include the emigration power discussed below at paras.37-40.
[18] Kruger at 68-69 per Dawson J, 93 per Toohey J, 116 per Gaudron J and 142 per McHugh J.
Constitutional right or freedom of political communication
In Kruger McHugh J said as follows:
The reasons that led to the drawing of the implication of freedom of communication lead me to the conclusion that the Constitution also necessarily implies that “the people” must be free from laws that prevent them from associating with other persons, and from travelling inside and outside Australia for the purposes of the constitutionally prescribed system of government and referendum procedure. The implication of freedom from laws preventing association and travel must extend, at the very least, to such matters as voting for, or supporting or opposing the election of, candidates for membership of the Senate and the House of Representatives, monitoring the performance of and petitioning federal Ministers and parliamentarians and voting in referenda.[19]
[19] Kruger at 142 per McHugh J.
In Kruger Gaudron J found that any implied right to freedom of association and freedom of movement was not absolute.[20] Gaudron J said:
…Similarly, freedom of association and freedom of movement are not absolute. Obviously, they must yield to valid laws of the Commonwealth on topics which clearly comprehend restrictions on movement and association, as is certainly the case, for example, with s 51(vi) which authorises laws with respect to defence, s 51(ix) which authorises laws with respect to quarantine and s 51(xix), so far as it is concerned with aliens. It is equally obvious that freedom of association and freedom of movement must yield to court orders for the detention of persons in custody upon conviction for criminal offences. So to state is not to mark out the boundaries of these freedoms: it is simply to illustrate that they are not absolute.[21]
[20] Kruger at 121 and 125 per Gaudron J.
[21] Kruger at 121 per Gaudron J.
In Lange v Australian Broadcasting Corporation the following formula was set out as a means of establishing whether the implied freedom of communication was infringed:
When a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. Firstly, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Secondly, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people …. If the first question is answered ‘yes’ and the second ‘no’, the law is invalid.[22]
[22] (1997) 189 CLR 520 at 567-568 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
Any freedom of political communication is restricted to a freedom of communication for the purposes of the constitutionally prescribed system of government and referendum procedure.
In this case, Mr Williams did not assert that any right or freedom of movement based upon freedom of political communication implied under the Constitution. Rather, he asserted that, as an Australian citizen he was entitled to travel, and thereby to enter and leave Australia.[23]
[23] Transcript at page 11.
Section 72D of CS (R&C) Act is not in the Court’s view a law which effectively burdens freedom of communication about government or political matters. The restriction on overseas travel imposed by the DPO has no relevant connection to communication about government or political matters in its terms, operation or effect. For that reason, s.72D of the CS (R&C) Act does not infringe any implied constitutional right or freedom with respect to political communication or movement.
Assuming, however, that s.72D of the CS (R&C) Act might burden freedom of political communication or movement, it is nevertheless a law reasonably appropriate and adapted to serve the object intended by s.72D, and the CS (R&C) Act more broadly, that object being that children receive financial support that a parent is liable to provide and that that support is paid on a regular and timely basis.[24] In that context, it is appropriate to note that a person the subject of a DPO may make arrangements satisfactory to the Registrar for the child support liability to be wholly discharged, which will then allow the person the subject of the DPO to travel overseas, and that the DPO is, in any event, discretionary.
[24] CS (R&C) Act, s.3(1)(a) and (b).
In all the circumstances, the Court can find no basis for invalidity arising from any constitutional right or freedom of movement, either per se or within the context of a right of freedom of political communication, and on this basis, there is no reason to declare s.72D of the CS (R&C) Act invalid.
The emigration power
The registrar argued that the power to issue a DPO under s.72D of the CS (R&C) Act might be upheld under the emigration power in s.51(xxvii) of the Constitution.
The Commonwealth Parliament has the power to legislate with respect to ‘emigration’.[25] Emigration includes not only its especial sense of a person departing a country, usually their native country, to settle permanently in another country, but also migrating or departing out of a particular place, and in respect of which, ‘emigration may be encouraged or discouraged, or forbidden, or regulated by Parliament’.[26] It is arguably significant that s.72D of the CS (R&C) Act uses the words “does not depart from Australia for a foreign country”.
[25] Constitution, s.51(xxvii).
[26] Ex Parte Walsh & Johnson; In Re Yates (1925) 37 CLR 36 at 114 per Higgins J.
There are no express or implied rights under the Constitution allowing Australian citizens an unqualified right to enter,[27] or remain in,[28] Australia. These rights are enjoyed ‘under the law’.[29] If it is the best interests of the welfare of the child, a parent may be restricted from relocating within Australia by an order under the Family Law Act.[30] By extension, it can be said that an Australian citizen does not have an unqualified right to leave Australia, any ‘right’ to do so being qualified or exercisable only “under the law”.
[27] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 447, 449, 451, 454-5 per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 36 at paras.6, 12, 14 and 22 per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. See also Air Caledonie International v Commonwealth (1988) 165 CLR 462 at 470 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ (“Air Caledonie”).
[28] DJL v Central Authority (2000) 201 CLR 226 at 240 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and at 279-280 per Kirby J; [2000] HCA 17 at para.21 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and at paras 137-138 per Kirby J. See also Vasiljkovic v Commonwealth (2006) 228 ALR 447 at 459-460 per Gleeson CJ; [2006] HCA 40 at para.35 per Gleeson CJ.
[29] DJL v Central Authority (2000) 201 CLR 226 at 279-280 per Kirby J (with which Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ relevantly agreed at 240) citing Air Caledonie at 470; [2000] HCA 17 at paras.137-138 per Kirby J (with which Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ relevantly agreed at para 21) citing Air Caledonie.
[30] AMS v AIF (1999) 199 CLR 160; [1999] HCA 26.
Section 72D of the CS (R&C) Act is, in the circumstances, in addition to the marriage, referral or adoption power, and so far as is necessary, the incidental power, also supportable by reference to the emigration power, for the purpose of preventing a person from departing Australia for a foreign country.
Incidental power
It is not necessary to discuss the incidental power in any detail.
Conclusion – constitutional right or freedom of movement to depart Australia.
There is no unqualified right to or freedom of movement, such as would allow the applicant to depart Australia, whilst the subject of a DPO made under s.72D of the CS (R&C) Act. Section 72D of the CS (R&C) Act is not invalid. This ground of the application fails.
Jurisdiction to vary registered Child Support Assessment
The applicant seeks an order that the Court order the Registrar to:
“retrospectively change my assessment for Child Support back to original assessment for the period 7th September 2007 to 6th December 2008 at an annual rate of $333.00 pa ongoing to April 2009 and or until there is a significant change to income resulting in a reassessment.”[31]
[31] Amended application filed 30 March 2009 (“Amended application”).
The applicant relies on the following grounds in support of this claim:
1. That the CSA [Child Support Agency] and the SSAT [Social Security Appeals Tribunal] have relied on misleading and false information provided by … [the applicant’s former partner is named] including the making of decisions not consistent with the information provided;
2. That at no time has CSA and or SSAT demonstrated that [the applicant] has any income, assets and or financial resources to support assessment.
The applicant also seeks an order in the following terms:
“…that the Child Support Registrar accepts … that the sum of $6,000 has been paid and received on the basis of funds provided for child support…”[32]
[32] Amended application.
The applicant asserts that the Child Support Agency[33] and the Social Security Appeals Tribunal[34] have been provided evidence that the applicant did in fact pay $6,000 to Ms Smith for child support, and that neither CSA nor the SSAT accepted payment of or credited that amount to the applicant’s child support account.
[33] “CSA”.
[34] “SSAT”.
The issue for this Court is whether it has jurisdiction to vary a child support assessment, or to order the Registrar to vary a child support assessment.
Sections 72Q and 72S of the CS (R&C) Act provide as follows:
72Q (1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Magistrates Court against the making of the order.
(2) …
72S A court hearing an appeal under section 72Q against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the order; or
(b) dismiss the appeal.
On its face, the CS (R&C) Act does not provide this Court with jurisdiction to vary a child support assessment on an appeal under s.72Q.
There are other legislative provisions giving jurisdiction and power to courts to allow the variation of child support assessments, in two ways:
a)on an appeal from the SSAT; and
b)by applying for a departure order from an administrative assessment.
Appeal from SSAT
A party to a proceeding before the SSAT may appeal “to a court having jurisdiction under this [CS (R&C)] Act” on a question of law from a decision of the SSAT.[35] In this case the applicant is not appealing from the SSAT decision of 27 August 2008 which refuses his appeal (to SSAT) against the CSA’s disallowance of his objection to a variation of his child support liability. In any event, even if the current application were considered as a purported appeal from the SSAT decision of 27 August 2008, the appeal would be incompetent as it:
a)is out of time;[36]
b)does not raise a question of law arising from the SSAT decision;[37] and
c)the applicant’s former partner is not a party to the proceeding.[38]
[35] CS (R&C) Act, s.110B.
[36] Under s.110C(1) of the CS (R&C) Act and r.25A.06(2) of the Federal Magistrates Court Rules 2001 the appeal must be filed within 28 days of the receipt of the SSAT’s statement of reasons for decision.
[37] CS (R&C) Act, s.110B.
[38] CS (R&C) Act, s.110D.
Application for Departure Order
A party may apply for departure from an administrative assessment under s.116(1)(b) of the Child Support (Assessment) Act 1989 (Cth),[39] “to a court having jurisdiction under this [CS (A)] Act”
[39] “CS(A) Act”.
Jurisdiction of this Court in Western Australia
Save for the provision relating specifically to DPO, the jurisdiction of this Court in child support assessment matters is prescribed by s.99(1) of the CS(A) Act which provides as follows:
(1) Jurisdiction is conferred on the Family Court and the Federal Magistrates Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act.
The Registrar argued that in Western Australia, this Court is not a court of competent jurisdiction for the purposes of an appeal under s.116(1) of the CS(A) Act because the Family Court of Australia does not have jurisdiction in matrimonial matters in Western Australia, and says that this Court has been given the same jurisdiction as the Family Court of Australia under the CS(A) Act.
The Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Act1999 (Cth) described the purpose of the new s.40A as follows:
…to ensure that the Federal Magistrates Court can only exercise jurisdiction in the same State and Territories as the Family Court can. This is designed to ensure that if State or Territories set up their own family courts, any restriction on the exercise of family law jurisdiction by the Family Court [of Australia] will extend to the Federal Magistrates Court.
When amendments were made to s.99(1) of the CS(A) Act to confer jurisdiction on this Court the Explanatory Memorandum described the effect of the amendments as follows:
This item amends s99(1) of the Child Support (Assessment) Act 1989, to give the Federal Magistrates Court the same jurisdiction as the Family Court of Australia under this Act.
The Registrar thus says that the jurisdiction of this Court in child support assessment is restricted in a similar manner to s.40A of the Family Law Act 1975 which provides:
The jurisdiction of the Federal Magistrates Court under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory.
In the Court’s view the Registrar’s argument is confirmed by s.100(1) of the CS (A) Act which provides as follows:
(1) The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:
(a) the proceedings were proceedings under Part VII of that Act; and
(b) the proceedings were proceedings instituted under Part VII of that Act; and
(c) a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
(d) a decree made in the proceedings were a decree made under Part VII of that Act; and
(e) matters arising in the proceedings were matters arising under Part VII of that Act; and
(f) any other necessary changes were made.
This Court therefore has no jurisdiction in Western Australia to provide the relief sought by the applicant in relation to reassessment of the child support assessment and the Court cannot consider the merit of the applicant’s claim. This ground of the application therefore fails.
Appeal against Departure Prohibition Order
In the grounds given in support of his application for an order that the Court remove the DPO the applicant asserts that the Registrar:
a)has relied on false information provided by his former partner;
b)made a decision inconsistent with information provided;
c)has not demonstrated or substantiated that the applicant has any income, assets or financial resources to support the assessment or debt; and
d)has not accepted and credited to his account payments evidenced and totalling $6,000 made by him to his former partner.
The applicant also alleges he has a constitutional right or freedom of movement, which, for reasons set out above, he does not have.[40]
[40] See paras.6-42 above.
Factual Background
On 7 June 2006, the applicant’s former partner contacted the CSA to make an application for child support assessment in respect of their child.
The applicant was initially assessed to pay child support of $1,001 per annum from 7 June 2006, the assessment based on his taxable income for the 2004/2005 financial year.
On 12 June 2006, the applicant advised the CSA that he was not working as from 9 June 2006 and estimated his annual income to be nil. The CSA then assessed the applicant’s annual liability for child support at $260 for the period from 12 June 2006 to 6 September 2007.
On 6 September 2006, the child support income of the applicant was varied to $55,000, taking into account the income, earning capacity, property and financial resources of the applicant.
The unpaid arrears of child support owed by the applicant for the period from 18 June 2006 to 17 September 2006 amounted to $1,788.02.
On 15 February 2007, the CSA issued a notice to the National Australia Bank, pursuant to s.72A of the CS (R&C) Act, which resulted in payment of $1,867.07 being credited to the applicant’s child support account.
On 18 May 2007 a DPO was issued pursuant to s.72D(1) of the CS (R&C) Act. It was revoked on 5 July 2007 after payment of outstanding child support debts were received by the CSA.
On or about 30 July 2007, the applicant was assessed to pay child support for the period 7 September 2007 to 6 December 2008 at an annual rate of $5,272.
On or about 6 August 2007, the child support assessment was varied following receipt of further information. For the period 7 September 2007 to 6 December 2008 the applicant was assessed to pay child support at an annual rate of $8,962.
On 10 August 2007, the applicant advised the CSA that he had lost his job and estimated his annual income to be nil.
On or about 14 August 2007, the CSA assessed the applicant’s annual liability for child support at $333 for the period from 7 September 2007 to 6 December 2008.
On 20 November 2007, the child support income of the applicant was changed to $64,436.
On or about 22 January 2008, the applicant lodged an objection to the decision made on 20 November 2007. On 11 April 2008 the objection was disallowed by the CSA.
On 21 April 2008, the applicant lodged an application for review of the 11 April 2008 decision with the SSAT.
On 27 August 2008, the SSAT affirmed the decision under review.
The applicant did not appeal the SSAT decision.
On 20 October 2008, a DPO was made against the applicant under s.72D(1) of the CS (R&C) Act, and served on the applicant on that date. The applicant’s child support debt at that date was $8,805.05.
On 23 January 2009, the applicant lodged an application with the Family Court of Western Australia seeking removal of the DPO. The application was not pursued because the Family Court of Western Australia did not have jurisdiction in relation to the matter.[41]
[41] That jurisdiction being vested in the Federal Court and this Court under s.72Q of the CS (R&C) Act.
On 20 February 2009, the applicant appealed to this Court for removal of the DPO.
As at 19 March 2009, the applicant’s child support debt amounted to $11,776.11.
As at 23 March 2009, the applicant had not paid any child support since 17 October 2007, despite repeated requests for payment from the CSA.
The applicant has not applied for a departure authorisation certificate pursuant to s.72K of the CS (R&C) Act.
Issuance of the DPO according to law
In an appeal against a DPO under s.72Q the Registrar bears no onus of establishing the validity of the DPO. The person aggrieved must establish that the DPO was wrongly made. That may be done by satisfying the Court that one of the essential elements of s.72D of the CS (R&C) Act is absent.[42]
[42] Jones v Child Support Agency [2007] FCA 1732 at paras 5-6 per Emmett J (“Jones”). Section 72D of the CS (R&C) Act is set out at para.6 above.
The Court can only consider whether a DPO has been properly made.[43] An appeal may involve questions of fact or law, or both.[44] There are three principal questions for the Court to determine, namely:
a)whether the person has a child support liability;
b)whether the Registrar was satisfied as to the matters referred to in s.72D of the CS (R&C) Act and had the requisite belief; and
c)whether reasonable grounds existed for the Registrar to be satisfied as to the matters referred to in s.72D of the CS (R&C) Act and for the formation by the Registrar of the requisite belief.[45]
[43] Albaugh & Child Support Registrar [2007] FMCAfam 1106 at para.19 per Sexton FM. (“Albaugh”)
[44] Jones at para.6 per Emmett J.
[45] Jones at paras.5-6 per Emmett J. These statements have been applied in the Federal Magistrates Court in Albaugh.
The existence of a child support liability
Section 72E of the CS (R&C) Act provides as follows:
For the purposes of this Part, a person has a child support liability if:
(a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A; and
(b)an amount payable under the registrable maintenance liability is a child support debt; and
(c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.
Section 17(2) of the CS (R&C) Act provides that:
Subject to section 19, a liability is a registrable maintenance liability if it arises under a child support assessment.
There is no suggestion that s.19 of the CS (R&C) Act applies in these circumstances.
There is no dispute that the applicant has a child support liability, in accordance with ss.17 and 72E of the CS (R&C) Act above, the existence of which was admitted to by the applicant.[46] The question that the Court has to satisfy itself with is whether there was a child support liability at the time of the issuance of the DPO on 20 October 2008. It is in evidence that as at 20 October 2008, the applicant had a child support debt in the amount of $8,805.05.[47]
[46] Transcript at p.3.
[47] Parnell affidavit sworn 23 March 2009 at para.31.
The Court finds that the applicant had a child support liability at the time the DPO was issued.
Was the Registrar satisfied as to the matters referred to in section 72D of the CS (R&C) Act, and did the Registrar have the requisite belief as to those matters
Section 72D(1)(a) – the person has a child support liability
The Registrar was satisfied that the applicant had a child support liability under s.72D(1) of the Act, and as outlined above,[48] had reason to be so.
[48] In paras.86-90.
Section 72D(1)(b) – the person has not made arrangements to wholly discharge the liability
The Registrar must next be satisfied that the applicant has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.[49]
[49] CS (R&C) Act, s.72D(1)(b).
At the time of the DPO being issued, the applicant had a child support debt of $8,805.05. There is no evidence before the Court that the applicant made arrangements for the child support liability to be wholly discharged, and in fact the applicant has repeatedly refused to pay the child support liability as due, with the debt as at 19 March 2009 standing at $11,776.11.
The only substantial payments that have been made in the past have come as a result of enforcement action being taken.[50] No payment for child support has been received from the applicant since 17 October 2007.[51]
[50] Parnell affidavit sworn 23 March 2009 at paras.13-16.
[51] Child support transaction statement, Parnell affidavit sworn 23 March 2009 at RKP22.
The applicant claims that payments amounting to $6,000 that he made to his former partner should be credited to his child support account. At the time the payments were said to be made, there was no enforceable maintenance liability. If there were an enforceable maintenance liability at the time the payments were made, the Registrar would be required, pursuant to s.71 of the CS (R&C) Act, to credit the payments to the applicant’s account. Even if this were the case, that amount would not have been sufficient to wholly discharge the debt as it stood at the time of issuance of the DPO.
The Court finds that the Registrar was satisfied that the applicant had not made satisfactory arrangements to wholly discharge the child support liability, and, as outlined above, had reason to be so.
Section 72D(1)(c)(i) of the CS (R&C) Act – the person has persistently and without reasonable grounds failed to pay the liability
The Registrar must be satisfied that the applicant has persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability under s.17 of the CS (R&C) Act.[52] As outlined above, the applicant has a child support liability under s.17 of the CS (R&C) Act.[53]
[52] CS (R&C) Act, s.72D(1)(c)(i).
[53] See paras.86-90.
For the purposes of s.72D(1)(c) of the CS (R&C) Act, the Registrar must have regard to:
a)the capacity of the applicant to pay the debt;
b)the number of occasions on which action has been taken to recover the debt, and the outcome of the recovery action;
c)the number of occasions on which debts had not been paid on or before the day on which they became due and payable; and
d)such other matters as the Registrar considers appropriate.[54]
The capacity of the applicant to pay the debt
[54] CS (R&C) Act, s.72D(2).
As regards the capacity of the applicant to pay the debt, the applicant has consistently maintained that he has no income or financial capacity to pay his child support liability. As at 30 March 2009, the applicant claims that his income and financial position has not changed since July 2007, when he claimed to have a nil annual income.[55]
[55] Affidavit of Paul Montague Williams sworn 30 March 2009 at para.4 (“Mr Williams’ Affidavit”).
The applicant also claims that, as at 31 July 2007, the companies Montague Resources Australia Pty Ltd, Montague Minerals Pty Ltd and Montague Australia Pty Ltd, to which he was a Director, were placed into administration and he was dismissed as Director.[56]
[56] Mr Williams’ Affidavit sworn 30 March 2009 at para.2.
The applicant provided a notice of assessment for the year ending 30 June 2006, with a taxable income of $41,370. The notice of assessment for the year ending 30 June 2007 provided a taxable income of $33,549. The notice of assessment for the year ending 30 June 2008 provided a taxable income of nil.[57]
[57] Mr Williams’ Affidavit sworn 30 March 2009 at Annexure A.
On 20 October 2008 a submission for approval to issue a DPO against the applicant[58] was produced and forwarded to the delegate of the Registrar, who issued the DPO on the same date. The Approval Submission relevantly provided the following in relation to the applicant’s assets and income:
[58] “Approval Submission”.
Step 1 and 2 searches have been conducted, unable to confirm any current income source or assets for Mr Williams.
Mr Williams is a Director and Public Officer for Montague Resources Australia P/L, Montague Australia P/L, Montague Holdings Australia Ltd, Extreme Investments P/L, Phil Mining Australia P/L and Amazongold Australia P/L.
Mr Williams is a Public Officer for Promet Metallurgical Managers P/L.
Mr Williams is a Director and an active member for The Trustee for Extreme Super Fund.
Mr Williams is also linked to Promet Project Management P/L and Montague Mining P/L.
Mr Williams is the contact person for The Trustee for The Williams Family Trust and Mining Holdings P/L, whose Director is Mr Williams’ Mother.
Property search under Mr Williams’ name was unsuccessful but his current partner owns property in Dianella and Cloverdale. Mr Williams has previously stated that he [is] living with and being supported by his partner.
Mr Williams drives a BMW which is registered in his Mother’s name, as per Mr Williams’ advice on the 16/9/2008.
The Approval Submission also relevantly provided, in relation to the applicant’s capacity to pay the debt that:
[The Change of Assessment] decision to increase Mr Williams’ child support income amount to $64,436 and regular travel, indicates there is a capacity to pay.
The Registrar issued the DPO following the decisions of the CSA and the SSAT to uphold the assessment of child support income of the applicant at $64,436 for the period from 7 September 2007 to 30 June 2008 and for the period 1 July 2008 to 7 September 2009.
The CSA Change of Assessment decision, and the subsequent SSAT decision, both effectively concluded that the applicant had access to funds sufficient to evidence a capacity to pay, noting particularly:
a)the payment of substantial legal fees ($50,000 plus) on his behalf via a family trust; and
b)that he had financial resources which had not been disclosed (and noted a Family Court of Western Australia judgment (unreported) to similar effect).
The Court finds that it was open for the Registrar to find that the applicant had capacity to pay the debt, and that the Registrar considered the applicant’s capacity to pay the debt.
The number of occasions on which action has been taken to recover the debt, and the outcome of the recovery action
On 15 February 2007, subsequent to a demand for payment which the applicant did not comply with, the CSA issued a notice under s.72A of the CS (R&C) Act to recover payment from the National Australia Bank. On this occasion a payment of $1,867.07 was recovered and credited to the applicant’s child support account.
On 18 May 2007, subsequent to another demand for payment which the applicant did not meet, a DPO was issued pursuant to s.72D(1) of the CS (R&C) Act. On 4 July 2007, payments of $4,000 and $1,200 were made by the applicant, discharging his then outstanding child support debt.
The Approval Submission also notes requests for payment in September and October 2008 which were rejected by Mr Williams.
The number of occasions on which debts had not been paid on or before the day on which they became due and payable
There are numerous occasions on which the applicant has not paid his child support debt. As noted in the Approval Submission at the time of issuance of the DPO, the applicant was in arrears in the sum of $8,805.05.
Such other matters as the Registrar considers appropriate
No other matters are evident in the Approval Submission.
Conclusion – persistent failure to pay
The Court concludes that there were grounds on which the Registrar was able to conclude that the applicant had persistently and without reasonable grounds failed to pay child support, and that the Registrar had regard to the specified matters in so deciding.
Section 72D(1)(d) – ensuring that the applicant does not depart from Australia without making arrangements for, or wholly discharging the child support liability
The Approval Submission expressly refers to the DPO acting as security for the child support debt and it possibly assisting negotiations for satisfactory arrangements to be made concerning outstanding child support owed by the applicant.
Whether reasonable grounds existed for the Registrar to be satisfied as to the matters referred to in s.72D and for the requisite belief
The following facts, as discussed above, were reasonable grounds for the Registrar to form the requisite belief:
a)the existence of a child support liability, which was admitted by the applicant;
b)that the applicant had a child support liability of $8,505.05 at the time of issuance of the DPO;
c)that the applicant made no arrangements with the CSA to discharge his liability, wholly or in part;
d)successful enforcement action has been taken previously against the applicant in order to recover the child support liability;
e)an earlier DPO was issued, which resulted in the applicant shortly thereafter discharging his child support liability at that time;
f)the $6,000 claimed to have been paid as child support by the applicant to his former partner, was paid prior to the existence of an enforceable maintenance liability, and could not therefore be credited to the applicant’s child support account;
g)the applicant did not provide full and frank disclosure of his financial situation to the CSA or the SSAT, in relation to the appeals against his child support income assessment;
h)that the CSA and SSAT upheld the re-assessment of the child support income of the applicant at $64,436;
i)that the applicant has regularly been in arrears of his child support debt; and
j)that the applicant has been able to access funds for payment of legal fees and overseas travel, but not to pay his child support liability.
The Court finds that the Registrar was satisfied as to the matters, and had the belief, referred to in s.72D of the CS (R&C) Act, and that the Registrar based this on reasonable grounds.
Conclusion – DPO Appeal
In deciding to issue the DPO the Registrar took account and considered the essential elements of s.72D of the CS (R&C) Act. The applicant has failed to persuade the Court otherwise. The appeal must therefore fail.
Conclusions
There is no unqualified right to freedom of movement into and out of Australia. Section 72D of the Act is constitutionally valid.
The Court exercising jurisdiction in Western Australia has no jurisdiction to vary a child support assessment.
In hearing an appeal against the issuance of a DPO under s.72Q of the CS (R&C) Act, the Court must consider whether the applicant has satisfied the Court that the Registrar, in issuing the DPO, disregarded an essential element of s.72D of the CS (R&C) Act. For reasons set out in detail above, the Court has not been so satisfied.
The applicant’s application, and appeal under s.72Q of the CS (R&C) Act, must therefore be dismissed. There will be an order to that effect.
The Court will hear parties as to costs.
I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: S Dinon
Date: 22 May 2009
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