FEDERAL COURT OF AUSTRALIA

Emmett v McCormack [2015] FCA 826

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to file a further amended Originating Application for Judicial Review and a further amended Originating Application for Relief under Section 39B Judiciary Act 1903 in the form attached to the applicant’s written submissions dated 14 July 2015.

2.    Time be extended to enable the applicant to bring his claims for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

3.    The proceeding be dismissed.

4.    The applicant pay the respondent’s costs, as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) and s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) of a decision of the respondent made on 7 May 2014 to decline to waive a debt owed by the applicant to the Commonwealth (the decision). The debt was for arrears and interest in respect of child support payments. The power to waive such a debt was conferred, at the time of the decision, by s 34(1) of the Financial Management and Accountability Act 1997 (Cth) (the FMA Act). The respondent exercised the relevant power as a delegate of the Minister for Finance.

BACKGROUND FACTS

2    The Child Support division (Child Support) of the Department of Human Services (DHS) is the branch of the Executive Government of the Commonwealth that is responsible for administering child support assessments made under the Child Support (Assessment) Act 1989 (Cth) (the CS(A) Act) and the collection of child support liabilities under the Child Support (Registration and Collection) Act 1988 (Cth) (the CS(RC) Act).

3    The applicant and his former wife were married on 4 November 1989 and separated in July 1997. They subsequently divorced. There were two children of the marriage. Following the separation, both children resided with their mother. Both children are now over the age of 18 years.

4    In 1997, the applicant was administratively assessed to pay child support by reference to the child support formula contained in the CS(A) Act. The applicant was aware of that liability and, apparently, made payments as required until February 2000.

5    On 26 January 2000, the applicant resigned from his employment as a locomotive driver with the National Rail Corporation. In his letter of resignation, he expressed his feelings that he could “not justify paying out $1,100-$1,200 a month [for child support] when the mother can get away with all the above …”. This is a reference to various complaints which the applicant voiced in his letter about his former wife’s conduct towards him concerning their children. In his letter, the applicant queried whether it was necessary for his employer to contact “the tax department or the child support agency”. He pressed for an early finalisation of his position with the National Rail Corporation “because after January I will not be able to be contacted!!”. This was, apparently, a reference to the fact that the applicant intended to leave Australia and reside in the United Kingdom. In his letter, the applicant also made reference to his desire to see his father in the United Kingdom, whom the applicant had not seen since he was five years old.

6    As the law stood at the time, the effect of the applicant ceasing to be an Australian resident and taking up residence in the United Kingdom meant that his liability for child support would cease. The applicant was aware of this fact. It appears to be his substantial reason for leaving Australia. The applicant took up residency in the United Kingdom on 8 February 2000.

7    Amendments were made to the CS(A) Act and regulations were promulgated, with effect from 1 July 2000, which allowed a parent to make an application for a child support assessment where the other parent was residing in a reciprocating jurisdiction. The United Kingdom is, and at relevant times was, a reciprocating jurisdiction.

8    On 11 September 2000, the applicant’s former wife successfully applied for such an assessment against the applicant. Section 34 of the CS(A) Act provides that the Child Support Registrar must notify a parent who is liable under such an assessment. Child Support says that the applicant was not notified of the assessment because it did not have contact details for him.

9    On 4 April 2001, Child Support transmitted the collection of the child support payments required to be made by the applicant to the relevant United Kingdom authority, the Reciprocal Enforcement of Maintenance Orders (REMO) Section of the Lord Chancellor’s Department. This transmission was purportedly taken under the provisions of the Convention on the Recovery Abroad of Maintenance, opened for signature 20 June 1956, 268 UNTS 32 (entered into force 25 May 1957) (the Convention) and appears to have been implemented in the United Kingdom under the provisions of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (UK). It appears that the applicant’s former wife’s claim was treated as a proceeding in the United Kingdom for the recovery of maintenance in the sterling equivalent of a fair and equitable amount. On 8 February 2002, Magistrates in Folkestone, Kent made an order that the applicant pay £125.00 per child per month commencing on 1 March 2002 and continuing for a defined period.

10    The applicant made such payments between March 2002 and July 2012, although the applicant’s former wife has disputed that all required payments were made. Be that as it may, the monthly amount ordered by the Magistrates was less than the amount of the administrative assessment that had been made under the CS(A) Act. The Magistrates’ order did not extinguish or vary the assessment made under the CS(A) Act. The amounts received from the applicant by Child Support were disbursed to the applicant’s former wife and the applicant’s liability in respect of the assessment made under the CS(A) Act was reduced accordingly. However, as the monthly amounts received were less than required under the assessment, arrears accrued monthly. At this time, the applicant did not understand that he had a continuing liability under an assessment under the CS(A) Act and that the payments he was making were resulting in arrears accruing under such an assessment, for which he was liable. It is important to note that the applicant’s failure to meet his liability (of which he was then unaware) to pay the assessed amount of child support was to the detriment of his former wife who had the care of their children.

11    On 16 May 2003, Child Support issued an account statement to the applicant at an address in the United Kingdom. The account statement was sent back to, and received by, Child Support as “returned mail” on 18 July 2003. Child Support says that it held various overseas addresses for the applicant from 2000 to 2008, but these were all deemed to be invalid after the mail was returned.

12    However, following the receipt of a letter from the applicant on 5 February 2008, from which the applicant’s address in the United Kingdom was apparent, Child Support sent a letter to him on 28 March 2008, enclosing an account statement. It seems that it was at this time that the applicant first became aware that the disparity between the amount of support ordered to be paid by the Magistrates, and the amount assessed under the CS(A) Act, had resulted in accruing arrears for which the applicant was also being charged interest. In the meantime, on 14 March 2008, a second court order was made in the United Kingdom in respect of the applicant’s liability for maintenance. The order was for the same amount as previously ordered. The circumstances in which this order was made are unclear. It appears to have been a response to communications between Child Support and REMO in which Child Support requested REMO to review the amount that had originally be ordered by the Magistrates at Folkestone.

13    On 19 July 2007, the CS(RC) Act was amended by the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) to include s 30AA. In effect, this provision permits a person subject to child maintenance liabilities for the same child to register a second liability (here, the order made by the Magistrates) which, upon registration, extinguishes a first liability (here, the administrative assessment made on 11 September 2000), save for the recovery of arrears under the first liability.

14    The applicant spoke with staff at Child Support, apparently by telephone, on 3 April 2008. He spoke again with staff at Child Support on 10 November 2008. On this occasion, he asked if there was any way in which the amount of the arrears he owed could be decreased. The following is recorded in the brief from Child Support to the respondent:

We discussed Mr Emmett’s income and requested he update the provisional incomes that we were using to calculate his child support assessment, with what he actually earned. Mr Emmett declined to provide incomes. We explained that while the UK courts may only enforce part of the monthly liability this did not negate the Australian assessed amounts.

15    It does not appear that, at the time of these conversations, Child Support informed the applicant of the availability of s 30AA of the CS(RC) Act to avoid dual liabilities.

16    By mid-2012, the applicant had returned to Australia. There were a number of communications between him and Child Support from July 2012 to November 2012 about his historical income and the United Kingdom and Australian assessments for maintenance/child support. It was not until 20 November 2012 that Child Support advised the applicant of the facility provided by s 30AA of the CS(RC) Act.

17    On 30 November 2012, Child Support received a request by the applicant to register his liability for maintenance under, I assume, the second court order in the United Kingdom. This, however, was the day on which the applicant’s liability under the administrative assessment made under the CS(A) Act would have ceased in any event. It seems that, by that time, it was too late for the applicant to take advantage of s 30AA of the CS(RC) Act.

18    By letter dated 17 December 2012, the applicant, through Legal Aid New South Wales, lodged a formal complaint with Child Support in relation to its conduct towards the applicant (the Legal Aid letter). The Legal Aid letter also included a request for waiver of the applicant’s debt. The granting of a waiver is a matter within the responsibility of the Department of Finance (DoF) rather than Child Support. Accordingly, the request for waiver was forwarded to DoF on 20 March 2013, with a submission from Child Support explaining why it opposed the application for a waiver (the DHS submission). This submission sought to deal with the arguments that had been raised by the applicant in the Legal Aid letter.

19    On 20 March 2013, Child Support also sent a copy of the DHS submission to Legal Aid New South Wales, stating that if Legal Aid New South Wales wished to comment on the submission or provide additional documents to support the applicant’s request, this must be done by 8 April 2013. It does not appear that any comments on the terms of the submission were provided.

20    In processing the application, the DoF engaged in correspondence with a number of people and agencies, including the applicant and the applicant’s former wife.

21    The applicant also complained to the Commonwealth Ombudsman (the Ombudsman) who investigated the complaint and provided a report on 29 July 2013. The essence of the applicant’s complaint was that Child Support did not inform him of the administrative assessment of child support made in September 2000 (see [8]) and did not provide him with sufficient information to allow him to take action to amend his Australian liability and lessen the arrears that accrued following the reconciliation of his Australian assessment.

22    In the report, the Ombudsman was critical of Child Support’s conduct. A number of findings were made, including the following:

We accept Child Support’s view that its failure to advise Mr Emmett of the new assessment in September 2000 does not negate the validity of the Australian child support assessment. However, we consider that Child Support’s failure to take reasonable and obvious steps to trace Mr Emmett and advise him of his obligations and options once that assessment was made had a substantial and detrimental financial impact upon him. We consider that Child Support’s actions have prevented Mr Emmett from taking a very simple step to reduce his Australian liability and thus his arrears. We think that it was reasonable for Mr Emmett and REMO to believe that Child Support would provide Mr Emmett with the information and advice that he needed to make timely decisions about his child support case. Child Support’s failure to do so has led to the situation in which Mr Emmett is currently placed.

23    The report concluded with the following recommendation:

We accept that a waiver of Mr Emmett’s child support debt may not be fair to Ms Berry. However, we are not convinced that collecting the debt from Mr Emmett to pay to Ms Berry is a fair outcome either. It is our view that Child Support unreasonably failed to provide advice to Mr Emmett about his child support case. As a result of the lack of advice, Child Support is responsible for allowing a large debt to accrue. By way of a remedy we believe that Child Support should find a way to expunge or reduce Mr Emmett’s child support debt, while compensating Ms Berry through the scheme for Compensation for Detriment caused by Defective Administration (CDDA) or by making an act of grace payment for the amount equal to the child support debt loss.

24    On 7 May 2014, the respondent decided to refuse the request for a waiver. On 6 June 2014, the applicant requested a statement of reasons pursuant to s 13 of the AD(JR) Act. On 26 June 2014, a statement of reasons was provided (the statement of reasons).

The statement of reasons

25    The respondent made the following findings of fact in the statement of reasons:

(i)    When previously residing in Australia, Mr Emmett paid child support to his former wife Ms Leanne Berry for their two children. When Mr Emmett’s children were aged 5 and 7 he moved to the United Kingdom (UK), which ended his child support liability as his children were in Australia. Subsequently, Australian law changed and he became liable for Australian child support to Ms Berry, with the collection facilitated under UK laws. Although these payments were paid towards his Australian liability, they were less than required under Australian law so arrears began to accrue each month.

(ii)    Mr Emmett returned to Australia in June 2012. In July 2012, he ceased incurring new child support liabilities as his daughter turned 18. He stated he was unaware of the existence of the Australian child support debt because DHS did not advise him. He also stated he will sustain financial hardship by repaying this debt.

(iii)    Section 30AA of the Child Support (Registration and Collection) Act would have allowed Mr Emmett to extinguish his larger Australian Child Support liability by registering his smaller UK child support liability with DHS. DHS did not advise him of this option. DHS held various overseas addresses for Mr Emmett between 2000 and 2008 but these were deemed invalid when mail was returned. The Ombudsman was critical of DHS’s administration of this matter and both Mr Emmett and the Ombudsman consider DHS is responsible for Mr Emmett incurring the debt. However, DHS is not required by legislation or policy to notify customers of section 30AA.

(iv)    DHS state that Mr Emmett also disputed the authority of the UK to make an order under the United Nations Convention on Recovery Abroad Maintenance and considered that proceedings were instituted under UK law and the assessment would ‘come under’ the UK system.

(v)    Mr Emmett considered that section 30AA of the Child Support (Registration and Collection) Act 1988 – rule to avoid dual liabilities is also a basis for a finding of inequity. Mr Emmett also advised of serious mental health issues and financial hardship being caused by this debt.

(vi)    Mr Emmett and the Ombudsman were concerned that DHS did not advise Mr Emmett of a mechanism by which he could reduce his child support payments.

(vii)    DHS did not support the request for waiver and noted the debt was payable to Ms Berry for the ongoing support of her children. The allegations of defective administration made against it by Mr Emmett had not been denied by DHS. DHS advised that the CDDA Scheme is the appropriate mechanism to investigate the claims and had invited either party to claim.

(viii)    Ms Berry did not support a waiver of the debt. She considered Mr Emmett deliberately frustrated DHS’s attempts to contact him. She made a range of accusations about Mr Emmett’s conduct and character and provided documentary evidence for some of them. Ms Berry provided what she advised was a subpoenaed copy of a resignation letter from Mr Emmett dated 26 January 2000. The contents of that letter included a statement that Mr Emmett intended to ‘not be able to be contacted after January [2000]’ and that he ‘can not justify paying $1,100-$1,200 a month when the mother can get away with…’. The letter also queried whether the child support agency would be contacted on his resignation. The letter indicated an awareness of child support liabilities and an intention to not pay them. The Department of Finance provided Mr Emmett with a copy of this letter and he did not deny, contest or refute it.

(ix)    The Ombudsman proposed that the debt be waived and a payment be made to Ms Berry under the act of grace mechanism or under the CDDA scheme. The suggestion by the Ombudsman to waive the debt and make a commensurate act of grace payment to Ms Berry was predicated on an acceptance of Mr Emmett’s account of the facts.

(x)    Senator the Hon Marise Payne, the Minister for Human Services, has responsibility for decisions under the CDDA Scheme relating to DHS and at the time of making my decision, I understood that no CDDA application had been lodged.

(xi)    Mr Emmett had been advised of Ms Berry’s accusations and not responded specifically. He noted he ‘has made some mistakes’.

(xii)    The allegations of defective administration against DHS by the Ombudsman and Mr Emmett were plausible. The allegations of the attempt by Mr Emmett to reduce his child support liability through nefarious means were also plausible. The allegations were not mutually exclusive.

(xiii)    Mr Emmett was liable to pay this amount of child support under Australian law.

(xiv)    Mr Emmett was employed.    

26    The respondent identified the evidence he considered in making his decision. The applicant draws attention to the fact that the Legal Aid letter was not included in the many documents the respondent had before him. However, the respondent points to the fact that the submission from Child Support, with which he was provided, purports to be a summary of the arguments raised in the Legal Aid letter and Child Support’s response thereto.

27    The respondent gave the following reasons for his decision:

6.    Waiver of the debt of $123,401.68 (excluding late payment fees) would have been at the expense of Ms Berry.

7.    There was insufficient information for a finding of financial hardship on Mr Emmett’s part from enforcement of this debt.

8.    While a reduction in Mr Emmett’s payments to Ms Berry had been legally possible, I was not satisfied that his inability to avail himself of that was an inequitable outcome.

9.    Mr Emmett was liable to pay that amount of child support under Australian law.

10.    DHS’s investigation of the matter under the CDDA Scheme seemed the most appropriate forum for investigating Mr Emmett’s claims of its defective administration.

11.    There was insufficient information to conclude that Mr Emmett’s own actions had not contributed to DHS’s difficulties in locating him. I did not have sufficient information to accept that Mr Emmett bore no responsibility for this situation. In this regard, the specific, unrefuted (and in some cases documented) allegations made by Ms Berry strongly contradicted his claims. I was therefore not satisfied it would be appropriate to waive the late payment fees.

12.    I did not consider that a waiver of this debt was appropriate.

13.    I was not satisfied that there was any factor in Mr Emmett’s matter which warranted deviating from the general position of limited waivers of debt to instances where the debt’s enforcement would cause inequity or financial hardship.

The applicant’s case

28    The applicant contends that a breach of the rules of natural justice occurred in connection with the making of the decision and that the decision was legally unreasonable or so unreasonable that no reasonable person could have so exercised the power to make it.

29    As to the alleged breach of the rules of natural justice, the applicant contends that the respondent erred in failing to find that the conduct of Child Support was procedurally unfair and that the respondent failed to consider the applicant’s request for a waiver in the light of that unfairness.

30    In this connection, the applicant points to three matters. First, it points to the failure of Child Support or the DHS (or its predecessor) to notify the applicant of the administrative assessment made in September 2000 when s 34 of the CS(A) Act required such notice to be given. Secondly, he points to the failure of Child Support or the DHS (or its predecessor) to notify the applicant that he had an accruing debt because the payments he had been ordered to pay in the United Kingdom were not sufficient to meet his assessed liability under the CS(A) Act. Thirdly, he points to the failure of the DHS to advise him, when he was residing in the United Kingdom, of the existence of the rights he might have had under s 30AA of the CS(RC) Act, or, alternatively, that he might have rights under Australian law.

31    The applicant elaborated on these matters. He submitted that no realistic attempt was made by Child Support to find his address in the United Kingdom when all that was needed was an inquiry to REMO. He submitted that fairness required Child Support to contact him and advise him of the Australian assessment and that there was an accruing debt. He submitted that there was no obligation on him to notify Child Support or anyone else of his address in the United Kingdom, and that there was no way he could have known of an accruing Australian debt unless he was notified of that fact.

32    The applicant referred to an observation made in a briefing paper from the DoF to the respondent in which it was stated that there was insufficient information to conclude that the applicant’s own actions did not contribute to Child Support’s difficulties in locating him. The respondent accepted this observation, which ultimately formed part of his reasons: see paragraph 11 quoted in [27]. This observation in the briefing paper referred to, amongst other things, the applicant’s letter of resignation to which I have referred at [5]. The applicant challenged the correctness of this observation on the basis that the statements made in his letter of resignation concerning his departure to the United Kingdom (with the resultant inability to contact him) were made before the second administrative assessment was made in September 2000. He submitted that he could not have formed an intention as at January 2000 not to pay a liability that only came into existence in respect of that assessment on and from September 2000.

33    I do not think that that reasoning fully engages with the proposition that, on the information before him, there was insufficient information for the respondent to conclude that the applicant’s own actions had not contributed to the difficulties in locating him in the United Kingdom. The statements made by the applicant in his letter of resignation reveal a particular mindset at a time when he was liable in relation to an assessment under the CS(A) Act. Further, the respondent had before him other information obtained by DoF from the applicant’s former wife. This seems to me to be a finding that was open to the respondent. Indeed, in this connection, the respondent referred to “the specific, unrefuted (and in some cases documented) allegations made by” the applicant’s former wife which, the respondent concluded, “strongly contradicted [the applicant’s] claims”: see paragraph 11 quoted in [27].

34    The applicant pointed to the respondent’s finding that DHS was “not required by legislation or policy to notify customers of section 30AA”: see finding in (iii) quoted in [25]. The applicant submitted that this finding does not address the issue of whether the failure to notify the applicant of the facility provided by that section was procedurally unfair. The applicant submitted that “the clear objective of s 30AA was to encourage the registration of debts, thereby eliminating the possibility of dual liabilities”. He submitted that the failure of Child Support to inform him of the existence of s 30AA deprived him of the opportunity to carry out “the intention of that section” and was procedurally unfair.

35    Apart from these matters, the applicant contends that there is an independent basis for finding that, in the present case, there is procedural unfairness attending the respondent’s decision. The applicant referred to Griffiths J’s observation in SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [78] that a finding of procedural unfairness (and a constructive failure to exercise jurisdiction) would occur where there is a failure to deal with a submission of substance relating to a legal issue. Here, the applicant submitted, a submission in respect of the waiver of the applicant’s debt had been made in the Legal Aid letter, but this document was not before the respondent, even though it provided the basis for the applicant’s request. The applicant submitted that, in these circumstances, the respondent did not have an opportunity to consider the arguments put forward by him (the applicant) and to consider whether they formed a basis for waiver of the debt, or a part thereof. Thus, the applicant submitted, the failure to put this document before the respondent resulted in procedural fairness being denied, even though there may have been no fault on the part of the respondent himself: Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [22]; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [100]; O’Sullivan v Repatriation Commission (2003) 128 FCR 590 at 602-604.

36    The applicant pointed, in particular, to the following arguments made in the Legal Aid letter:

    The applicant was not contacted and advised of his Child Support assessment made in September 2000, as was required by s 34 of the CS(A) Act.

    The applicant was under no positive obligation to inform Child Support of his address in the United Kingdom.

    The applicant should not be held responsible for the fact that the orders made in the United Kingdom provided for an amount that was less than the assessment made in September 2000 under the CS(A) Act.

    A particular construction given to s 30AA of the CS(RC) Act was “flawed”.

37    As to the allegation that the respondent’s decision was legally unreasonable or so unreasonable that no reasonable person could have so exercised the power to make it, the applicant advanced the following submissions:

    The debt had accumulated without notice to the applicant, when the legislative requirement of s 34 of the CS(A) Act was that he should have notice.

    The respondent’s reasoning included a finding that the applicant may have been responsible for his situation when he was not required to give his address to Child Support after he left Australia. In this connection, the applicant had been paying Child Support through REMO; the United Kingdom authorities clearly had no trouble in finding him; and, Child Support made no realistic attempt to locate him.

    There was no notice to the applicant that he may have a means of “crystallising” the debt in circumstances where s 30AA of the CS(RC) Act “clearly intended that the past debt should be crystallised”.

38    In advancing this submission the applicant referred to various statements made in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [72] and [105].

Consideration

Procedural unfairness

39    The applicant’s case that a breach of the rules of natural justice arises from conduct of Child Support which the applicant says was procedurally unfair (see [29]-[34]), faces an obvious difficulty. The decision under review is the respondent’s decision under s 34(1) of the FMA Act, not Child Support’s conduct, although the latter’s conduct is relevant to the exercise of the respondent’s discretion under s 34(1).

40    The applicant’s contention is tantamount to arguing that, because Child Support’s conduct was “procedurally unfair”, so too must be the respondent’s decision. If that be so, it would mean that the imputed unfairness attending the respondent’s decision could never be remedied by the relief sought by the applicant, and would always attach to the decision.

41    In this connection, it is important to note that, save for one matter to which I will return (see [45]-[57]), the applicant does not contend that the respondent failed to comply with the rules of natural justice when making his decision. As the respondent puts the matter, the applicant was given an opportunity to be heard, and was heard.

42    The applicant accepts that the requirements of procedural fairness in an individual case are to be considered in light of the statutory regime governing the conduct complained of and the exercise of the relevant power: Kioa v West (1985) 159 CLR 550 at 614; Annetts v McCann (1990) 170 CLR 596 at 604; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. That being so, the focus of this part of the applicant’s case must be the process by which the respondent made his decision, not the antecedent conduct of Child Support which forms the factual background against which the respondent’s decision was made.

43    In any event, as the respondent points out, in making his decision, he appreciated that the applicant was seeking a waiver of the debt on the basis that Child Support had been at fault and was responsible for the applicant’s unawareness, at least until about late March 2008, of his accumulating liability, and his unawareness, until 20 November 2012, of the facility provided by s 30AA of the CS(RC) Act to limit his liability. In that connection, I note findings (ii), (iii), (v), (vi) and (xii) quoted in [25]. In particular, I also note finding (vii) quoted in [25] that the allegations of defective administration made by the applicant had not been denied by the DHS. Further, the respondent had regard to the Ombudsman’s conclusions and recommendations, as signified by findings (vi), (ix) and (xii). I accept, therefore, that the respondent appreciated the elements of the applicant’s complaints of defective administration by Child Support and thus the “procedural unfairness” identified by the applicant in this part of his case.

44    For these reasons, I am not satisfied that these grounds of the applicant’s case have been established. There was no breach by the respondent of the rules of natural justice as the applicant contends in this regard. Indeed, in this part of his case, the applicant seems to complain, impermissibly, about the merits of the respondent’s decision rather than pertinent aspects of the respondent’s decision-making process itself. Accordingly, this part of the applicant’s case on procedural unfairness fails.

45    I turn now to consider the one aspect of the applicant’s case which does raise a question as to whether the respondent’s decision-making process did involve procedural unfairness—namely, whether the respondent failed to consider the submissions made in the Legal Aid letter.

46    In dealing with this aspect of the applicant’s case, I note that the respondent accepts that the Legal Aid letter itself was not placed before him. He says, however, that, to the extent that the submissions in the Legal Aid letter had any relevant bearing on his decision, they were conveyed through other material and were taken into consideration by him. In particular, the respondent referred to the DHS submission which sought to identify and answer the matters raised in the Legal Aid letter. As I have noted, this submission was provided to Legal Aid New South Wales in a covering letter which invited comment and the provision, if desired, of additional documents to support the request for the waiver. No comments on the terms of the submission were provided. This would suggest that no issue was raised by the applicant concerning the adequacy of the summary made by DHS of the matters raised in the Legal Aid letter.

47    I accept that it would not be unreasonable for the respondent to rely on a summary of the submissions made in the Legal Aid letter. The question is whether the summary in the DHS submission failed to bring to the respondent’s attention a material matter which he was bound to consider and which cannot be dismissed as insignificant or insubstantial: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 30-31 and 65-66. The respondent also submitted that, in this discourse, the concern of natural justice or procedural fairness is the avoidance of practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2000) 214 CLR 1 at [37].

48    The Legal Aid letter raised four matters. The first was headed “Lack of Procedural fairness” and concerned, essentially, the lack of correspondence from Child Support to the applicant when he was living in the United Kingdom concerning his liability for child support. Plainly, the substance of the applicant’s case in that regard was before the respondent, as I have discussed. The Legal Aid letter included an allegation that it was only upon returning to Australia in 2012 that the applicant became aware that he was in arrears for child support payments. The applicant properly concedes that this statement in the letter is wrong, as is apparent from a letter written by the applicant which was placed before the respondent. He was aware of that matter in about late March 2008.

49    The Legal Aid letter did, however, contain a submission that the applicant had no positive obligation to inform Child Support of his address details in the United Kingdom. This particular submission is not stated in the DHS submission. However, at no stage has it been suggested by Child Support or anyone else that the applicant was under a positive obligation to supply his address details. In particular, there is nothing in the DHS submission that suggests that the applicant was under such an obligation or that Child Support regarded him as being under such an obligation, or that the applicant failed to comply with such an obligation. Indeed, there is no doubt that the DHS submission proceeded on the basis, and the respondent accepted (see finding in (i) quoted in [25]), that, when the applicant moved to the United Kingdom in 2000, his then child support liability ceased.

50    The respondent did reason that there was insufficient information to conclude that the applicant’s own actions had not contributed to the difficulties that Child Support had in locating him in the United Kingdom. However, this part of the respondent’s reasons is not based on a misapprehension that the applicant was under a positive obligation to inform Child Support of his residential details. It is plainly based on the information that was before the respondent: see paragraph 11 of the respondent’s reasons quoted in [27]. I have already commented on that finding: see [33].

51    Further, there is nothing in the respondent’s reasons to suggest that he otherwise proceeded on the erroneous view that the applicant was under a positive obligation to inform Child Support of his address details in the United Kingdom. Accordingly, the fact that this submission in the Legal Aid letter was not specifically identified in the DHS submission or otherwise brought to the respondent’s attention, is without significance. No practical injustice has been shown.

52    The second matter in the Legal Aid letter was headed “UNCRAM”. This is a reference to the Convention. In this part of the Legal Aid letter, the submission was that, under reg 31 of the Child Support (Registration and Collection) (Overseas Maintenance Obligations) Regulations 2000 (Cth), the only jurisdiction possessed by courts in the United Kingdom was to enforce the administrative assessment made under the CS(A) Act, not to determine the amount of maintenance to be paid by the applicant. This was so notwithstanding Article 6 of the Convention which specifically provides that the law applicable to any action or proceeding in the receiving State would be the law of the State of the respondent (here, United Kingdom law), including its private international law. The submission advanced in the Legal Aid letter was that the United Kingdom courts had exceeded their authority in making the orders they did and that the applicant should not be held responsible for the fact that, under those orders, a determination was made for maintenance in an amount less than the administrative assessment that had been made in Australia. This argument is somewhat difficult to understand, but it was accurately recorded in the DHS submission and placed before the respondent.

53    The third matter in the Legal Aid letter was headed “Proceedings instituted under UK law”. The essence of this submission was that, because of the proceedings in the United Kingdom, the applicant believed that the administrative assessment under the CS(A) Act was no longer in force. This submission is difficult to reconcile with the applicant’s case that he was not aware of the assessment made in September 2000 until receiving correspondence from Child Support in about late March 2008. Nevertheless the submission was accurately recorded in the DHS submission and placed before the respondent.

54    The fourth matter in the Legal Aid letter was headed “Section 30AA of the Child Support (Registration and Collection) Act 1989”. The submission advanced in the Legal Aid letter under this heading is difficult to understand. It referred to the introduction of s 30AA into the CS(RC) Act. It also referred, by way of background, to certain statements made in the Explanatory Memorandum, Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007 (Cth). The gravamen of the submission appears to be based on a misapprehension that it was Child Support’s view that the applicant was under a positive obligation to register the orders for maintenance made in the United Kingdom. The submission in the Legal Aid letter also raised an argument that if the proceedings in the United Kingdom were truly “enforcement” proceedings, the orders made in the United Kingdom could not create a “new” registrable liability for the purposes of s 30AA.

55    The DHS submission did not articulate these particular arguments, although it did deal with the introduction and effect of s 30AA.

56    It is not clear on the materials before me that Child Support has ever raised an argument that the applicant was under a positive obligation to register, pursuant to s 30AA of the CS(RC) Act, his liability for maintenance under the court orders made in the United Kingdom. Certainly that argument was not raised before the respondent and the respondent did not assess the applicant’s request for a waiver on the basis that the applicant was under such an obligation. Indeed, the applicant’s complaint, as the respondent comprehended it, was that he had not been informed of the facility provided by s 30AA and that this failure was an important element of the defective administration by Child Support that stood as one of the reasons why the debt should be waived.

57    Thus, the submission articulated in the Legal Aid letter was not germane to the respondent’s consideration of the reasons why the applicant’s debt should be waived. It seems that the argument ultimately advanced to the respondent was that Child Support should have done more to inform the applicant of the facility provided by s 30AA. That is certainly the case advanced by the applicant in the present proceeding. There is nothing in the respondent’s reasons to suggest that his decision was informed by a misapprehension that the applicant was under a positive obligation to register the maintenance liability created by the orders made in the United Kingdom. Therefore, the omission of the DHS submission to convey the particular argument in the Legal Aid letter is without significance. No practical injustice has been shown.

58    For these reasons, this part of the applicant’s case on procedural unfairness also fails.

Reasonableness

59    The applicant’s case in this regard essentially repeats the background facts to which I have referred and relies on those facts as demonstrating that the decision was not reasonable according to the standard of reasonableness required by law. In order to succeed on this ground it is necessary for the applicant to establish that the respondent’s decision was not reasonable according to the common law or, more specifically, was unreasonable according to the standard enshrined in s 5(2)(g) of the AD(JR) Act.

60    The legal requirement for reasonableness in administrative decision-making was considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. In that case, French CJ observed (at [30]):

[30]    The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” As Professor Galligan wrote:

“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.”

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(Citations omitted.)

61    In the same case, Gageler J said (at [108]):

[108]    Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy.

62    His Honour also observed (at [113]):

[113]    Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. This is a rare case.

63    In the same case, the plurality (Hayne, Kiefel and Bell JJ) referred (at [76]) to the inferences that may be drawn by an appellate court that there has been a failure properly to exercise a judicial discretion if, upon the facts, the result of the exercise of the discretion is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505. Their Honours said:

[76]    …The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

64    In Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50, the Full Court identified (at [46]) the question of whether, in assessing a contention with respect to legal reasonableness, the court, on review, is confined the reasons given by the decision-maker, where reasons are given. The Full Court noted that the approach taken by the High Court in Li was to examine the reasons, and justification, given by the Tribunal whose decision was there under review. The Full Court said (at [47]):

[47]    This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499; 10 ALJR 202, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

65    I turn, therefore, to consider the respondent’s reasons.

66    I accept that the matters referred to by the applicant—which I have summarised at [37]—bear logically on the merits of the respondent’s decision. As the respondent put it, these matters are part of the debate played out in the materials that were before the respondent as to the relative degrees of responsibility between Child Support and the applicant for the situation that had arisen in respect of his liability for the debt. These considerations were not, however, the only considerations which were before the respondent and to which he had regard in arriving at the decision.

67    The respondent reasoned that, although waiver of the debt would be of benefit to the applicant, it would equally be at the expense of the applicant’s former wife, who had the benefit of the assessment for child support under the CS(A) Act.

68    The respondent considered that there was insufficient information to make a finding that enforcement of that debt would result in financial hardship for the applicant. This particular aspect of the respondent’s reasoning is not challenged. Indeed, on 20 May 2013, the applicant made clear to DoF that he did not wish to rely on financial hardship as the basis for an exercise of the discretion in his favour. This then left for the respondent a consideration of whether it would be inequitable for the debt to remain.

69    The respondent reasoned that while a reduction in the applicant’s liability had been legally possible (a reference to the facility provided by s 30AA), he was not satisfied that the respondent’s inability to avail himself of that facility was an inequitable outcome. In coming to this conclusion, it is clear from the findings of fact that the respondent was mindful that DHS did not advise the applicant of this option (at least until it was practically too late to exercise it) and that this was an aspect of Child Support’s conduct about which the Ombudsman was critical.

70    Further, the respondent was not satisfied on the material before him that the applicant bore no responsibility for the inability of Child Support to contact him in the United Kingdom. The respondent specifically referred, in that regard, to allegations made by the applicant’s former wife that had not been refuted by the applicant.

71    The respondent was also alive to the existence of the Scheme for Compensation for Detriment caused by Defective Administration as a forum for the applicant to bring his claims of defective administration by Child Support.

72    In the end, the respondent was not satisfied on the material before him that inequity would ensue by not waiving the debt.

73    Reasonable minds may well differ on the merits of that conclusion. For some—the applicant in particular—the respondent’s decision might well be regarded as unfair having regard to the particular circumstances on which the applicant relies. However, the respondent’s decision was arrived at on more broadly based considerations. Thus, differences in view as to the fairness of the decision are properly seen as no more than differences of degree, impression and in empirical judgment: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78]. The respondent’s appreciation of the circumstances left him unsatisfied that inequity or financial hardship would ensue if the debt was not waived.

74    I am not persuaded that the respondent’s reasoning in relation to the decision, or the decision itself, manifests a lack of reasonableness in the relevant legal sense. While I accept that minds may well differ about the merits of the respondent’s decision, I am not persuaded that the decision is arbitrary, capricious, perverse, lacking in common sense or unintelligible—to use some of the expressions employed in the cases to denote unreasonableness in the relevant sense. Further, I am not persuaded that the decision is so unreasonable that no reasonable decision-maker could have reached it. A claim that an administrative decision is not reasonable according to a requisite legal standard does not provide the opportunity for a court to substitute its own decision for the one under review simply because the court thinks that its decision is or might be a better one and, for that reason, is to be preferred in the circumstances of a given case.

75    For these reasons, I am not satisfied that the applicant has established this ground of review.

Conclusion and disposition

76    It follows that the application for judicial review should be dismissed. The applicant should pay the respondent’s costs.

77    For completeness, I note that the applicant’s claims for relief under the AD(JR) Act require an extension of time in which to bring them. The respondent did not oppose an extension of time being granted. The applicant also sought leave to file a further amended Originating Application for Judicial Review and a further amended Originating Application for Relief under Section 39B Judiciary Act 1903. Leave was not opposed by the respondent.

78    Orders will be made accordingly.

Associate:

Dated:    12 August 2015