FEDERAL COURT OF AUSTRALIA

Stepien v Department of Human Services [2018] FCA 1062

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is refused.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The applicant has applied for an extension of time in which to file a proceeding pursuant to s 46PO(2) of the Australian Human Rights Commission Act 1986 (Cth), in relation to a complaint of unlawful discrimination against the Child Support Agency and also Centrelink, which are both entities within the Commonwealth Department of Human Services.

2    The applicant’s underlying complaint relates to conduct and decision-making of officers of the Child Support Agency in discharge of their functions under the Child Support (Assessment) Act 1989 (Cth), in relation to the payment of child support by him, and by his ex-wife, for their two children. His complaint extends to Centrelink to the extent that the Child Support Agency has relied on records from Centrelink in relation to its decisions. I describe the applicant’s complaints in more detail below, but in summary he contends that the decisions made by officers of the Child Support Agency, and conduct engaged in by them, treated him less favourably because he was a man and accordingly constituted discrimination against him on the grounds of his gender, contrary to the provisions of the Sex Discrimination Act 1984 (Cth).

3    For the reasons set out below, I have decided the application for an extension of time should be refused.

Background

4    Dr Stepien read two affidavits in support of his application for an extension of time: one sworn 26 March 2018 and filed with his originating application, and the second sworn 18 May 2018 in support of his application for an extension of time. Broadly, insofar as Dr Stepien gives evidence in these two affidavits of the chronology of events relevant to his discrimination complaint, I accept that chronology is accurate.

5    Dr Stepien has also produced a large number of documents, many of which are court documents, or documents from the Child Support Agency containing decisions made by the officers of the Agency. All such documents may be accepted as reliable sources of evidence about the narrative of the last four years, insofar as that narrative is relevant to Dr Stepien’s discrimination complaint.

6    His affidavit material also contains evidence about the conduct of his ex-wife, Ms Paula Stepien, their interactions in relation to the care of their children and also in relation to child support, a number of assertions about Dr Stepien’s role as a carer of their children in comparison to the role of Ms Stepien as a carer for their children and, generally, a number of allegations about Ms Stepien’s attitude to her responsibilities as a carer of their children. As I explained to Dr Stepien during the hearing, his evidence on these matters is untested and although I do not doubt the genuineness of the perspective he presents through this evidence, Ms Stepien has not been heard in relation to any of these allegations and it is highly likely that, at least to some extent, she has a very different perspective on the events to which Dr Stepien deposes. I have not needed to rely on Dr Stepien’s evidence where it falls into this category, and make no findings about these aspects of his affidavit material.

7    The respondent adduced no evidence on the extension of time application, but did not object to Dr Stepien’s two affidavits being read.

8    Dr Stepien deposes that he was born in Poland and was at the time of his affidavit 39 years old. He is a qualified emergency doctor and describes himself as “currently intermittently working in Emergency Departments in Melbourne”. He has been living in Australia since 2005 and deposes that he has no family or relatives in Australia. During the hearing, he described how on a number of occasions he had brought his parents from overseas to assist him with the care of his two young boys, but I otherwise accept that he does not have any family permanently resident in Australia. Dr Stepien and Ms Stepien’s two children are primary school age. After the breakdown of their marriage, and following what appeared to be a difficult dispute over the care of the two boys, by final orders made on 3 February 2015 in the Federal Circuit Court in Melbourne, it was determined that Dr Stepien and Ms Stepien would have shared parenting responsibility for the two boys, although a residence order was made in favour of Dr Stepien in relation to the two boys.

9    Dr Stepien deposes that he separated from Ms Stepien at the end of December 2013. He deposes that the Child Support Agency “got involved at the end of January 2014 on the application for child support” filed by Ms Stepien. He then deposes to a number of events through 2014 and 2015 which are the basis of his complaint of unlawful discrimination.

10    As I have noted, Dr Stepien has provided a great deal of material to the Court. I accept he has done so in order to demonstrate that he has a lot of material to substantiate his claims and to attempt to provide the Court with as much detail as possible. As I explained to him during the hearing, the amount of material provided does present a challenge for the Court in identifying with some clarity what it is that he identifies as the acts of discrimination about which he complains. As I explained to Dr Stepien in the hearing, it is necessary as part of the Court’s consideration of his extension of time application for the Court to consider whether he has an arguable case of unlawful discrimination. In order to consider that question, the Court must be able to identify with reasonable clarity what it is he contends were the acts of discrimination, and what it is he contends was the prohibited reason for the acts of discrimination.

11    During the hearing I took Dr Stepien through his affidavit material in an attempt to assist him to identify for the Court what it was that he said constituted the acts of discrimination. Having now read the material in Dr Stepien’s affidavit in some detail, it is apparent (and consistent with my view of Dr Stepien’s commendable frankness with the Court and his intention to disclose what is necessary for the Court to understand his complaint) that the way Dr Stepien put his complaint to the Australian Human Rights Commission remains the way that he puts the complaint to this Court. Of course the synchronicity that is now apparent to me in Dr Stepien’s documentation (at least on a careful reading, when some of the more contested narrative is put to one side) is also a requirement for this Court’s exercise of jurisdiction.

12    Section 46PO(3) of the Australian Human Rights Commission Act provides:

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

13    This is a jurisdictional requirement: allegations made in any originating process in this Court cannot travel in substance outside the allegations made in the complaint to the Commission: see: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [43]-[48]; King v Jetstar Airways Pty Limited (No 2) [2012] FCA 8; 286 ALR 149 at [24]-[25] and [28].

14    Accordingly, the acts of discrimination identified by Dr Stepien can be taken from parts of his complaint to the Australian Human Rights Commission, which was annexed to his originating application in this Court. The relevant portions are as follows:

First unlawful discrimination took place for the first period of living arrangement … from end of January till mid of March kids predominantly lived with me.

…

Despite providing detailed diary of same CSA refused to acknowledge any of it charging me child support for time kids fully live with me. They finally agreed to review it in October 2014 but things got lost in the system and only in January 2015 I got a call where they acknowledge same. However, they did not acknowledge all nights and days kids were with me stating it would be “unfair to the other parent” effectively charging me “child support” for time kids were fully cared for and provided by me. Another episode of discrimination was done by Mr Paul Duck. As CSA refused to acknowledged any of my contributions to kids (daycare fees, car fees etc) and charge me child support on top I applied for review. At the same time my ex wife was falsely claiming that she doesn’t work. Mr Duck in one of his conclusions in denying any of my contributions to be taken as child support stated that outside of working as a doctor I have a business that gives me an unfair advantage. At the same time my exwife’s business was dismissed as she said she is not really working on it. Different principal was applied to same matter just because I’m a male and she is a female. She was never asked to provide anything more then verbal response to any questions while I was continuously asked for documents.

…

However discrimination continued. First my employer continued to be charged child support. When I asked about it, it was dismissed as my claim not being true. Only when I insisted to check on the computer I was told that it is true and I will get a refund.

Following week I received letter about one of my boys stating that my payment of child support will now continue as is till end of June 2015 and then triple after that. When I called I was again dismissed. Week after that another letter in regards to my other son arrived stating same as with my first boy that I will continue to be charged child support at current level till June 2015 and then it will triple. When I called I was dismissed till I insisted for it to be check as I know what I got in front of me. What I got in response was that it’s a computer error (no one as usual took responsibility) as it’s unusual to have kids live with father so it was reversed in favour of the mother.

…

When I was told it’s a computer error I applied online for child support. CSA officer that contacted me stated that it should have reverted automatically and whoever was involved made an error. Despite reversal in these order and clear evidence that mother is working CSA did not collect any child support using her 2013 income tax as a reason that she doesn’t have to pay anything.

…I contacted CSA in second half of 2015 asking about what they are doing in regards to child support. Seems that given that the other parent is a female they did nothing. It simply was the absolute opposite they did when kids were in a shared custody arrangement. I was then told that it’s my responsibility to provide them with evidence. So I did. I was then told it’s not enough, an officer simply took what mother said as true (which read by anyone simply was laughable). I made an objection. Reviewing officer stated that I need to provide more as based on what I provided it’s not enough. Then she said that since I went through this process before I should know it’s been more than one month. Same time frame was never applied to female parent or CSA itself…

When I provided evidence I was told [by the officer]….first she has to decide if she can grant me extension of time which she refused saying “it would be unfair to other parents”. It was what she could have done straight away but it was not expected that I will provide sufficient evidence. Then she added that she would have to make a given amount to have to pay child support. A comment that if centerlink provides anything for her they got it right was also made. This is on a background where federal judge not only refused any financial support mother was seeking but stated that she is more than capable of work. In May 2016 was the last incident of ongoing discrimination and abuse by CSA. I have done my tax return for 2013 and 2014. My estimate was $60,000 while my taxable income was $100,000. I have then received an email (no emails about not being able to collect form my ex wife, not even trying) that I need to pay an extra $2,700 plus $270 penalty for period from August 2014 till January 2015. When I called firstly I was told it’s wrong, I don’t have to, then I got a call later I have to and person that gave me that information was a trainee. Finally when I called to say I wont and objected stating that my work and therefore income was not evenly distributed as after new court orders having not only debt but also CSA not seeing a need for a female parent to provide for kids I had to work more hence my income was greater … When I asked what income are they using for mother who clearly worked from February 2015 (not only in smses to me but also in her court statements) as I did not get a tax income for 2014/15 for the mother which if available has to be provided to me as mine was to her I was told they only have the 2013 one as she has not done any other tax returns. When I asked about her estimated income I was told “she doesn’t have to provide it to them”. For me this is clear discrimination on two bases. I was just told I had to and secondly I had to update it when we shared custody and I was the paying parent as my exwife falsely claimed no income (proven in subpoenaed court documents).

…

I simply find CSA prejudice unacceptable. Its widely known and especially in legal circles about CSA staff general prejudice to males yet no one does much about it.

15    To summarise these acts of discrimination, read fairly, it seems to me Dr Stepien alleges:

(a)    Decisions were made about his capacity to pay being greater than that of Ms Stepien on the basis of assumptions about what it was reasonable to expect him, as a man, to do, versus what it was reasonable to expect Ms Stepien, as a woman, to do, and these had no basis in fact.

(b)    Decisions were made about both his entitlement to receive child support from Ms Stepien and Ms Stepien’s entitlement to receive child support from him on the basis of assumptions about Ms Stepien’s level of involvement in the care of the children, and these had no basis in fact.

(c)    He was also treated differently (and less fairly) in the kind of evidence he was asked to provide to support this capacity to pay, and his proof of income, than Ms Stepien was asked to provide – the only difference being, on his case, their gender.

(d)    There was an overall tendency to accept whatever Ms Stepien said as true, including by reliance on Centrelink records, and this – Dr Stepien contends – stemmed from the fact Ms Stepien was female, and the mother of the children.

(e)    There was an expectation that it was acceptable for Ms Stepien not to work as much as Dr Stepien was expected to – again, based (he contends) on Ms Stepien being female (and the children’s mother).

16    Dr Stepien’s complaint was received by the Commission on 16 December 2016. The Commission facilitated conciliation discussions with Dr Stepien and the respondent in July and August 2017. The Commission’s determination letter states that the complaint could not be resolved through this process “because the parties could not agree on how to resolve the complaint”. When one takes account of the relief sought by Dr Stepien in the originating application, which I describe below, that statement is understandable.

17    A delegate of the President of the Commission terminated Dr Stepien’s complaint on 22 August 2017. In the termination letter, Dr Stepien was advised that he could apply to the Federal Circuit Court of Australia or to this Court to have his allegations decided by a court. He was advised that he must make any such application within 60 days of the date on the notice of termination. That timing is underlined in the Commission’s notice of termination.

18    The time period set out in s 46PO(2) expired on 22 October 2017.

19    Dr Stepien did not file his originating application in this Court until 28 March 2018, 218 days after the notice of termination was issued and 157 outside the prescribed 60 day period.

Applicable principles to the discretion to extend time

20    The Court has a discretion under s 46PO(2) to extend the time in which an application can be made under s 46PO(1). The discretion is unconfined, save by reference to the scope, subject matter and purpose of the discretionary power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J).

21    Discretionary powers such as the one in s 46PO(2) inevitably involve consideration of what is in the interests of the administration of justice, that being the Court’s core function.

22    In this sense, the discretion in s 46PO(2) is of the same character as that to be found in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), considered by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344. As I observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [41]-[42], Hunter Valley has become the classic authority on the kinds of considerations which should be taken into account by a court in determining how to exercise a discretion to extend time. In Hunter Valley at 348-350, Wilcox J reviewed the matters which had been treated as relevant by the authorities to that point. That list of factors has been endorsed repeatedly in this Court as providing guidance on how the exercise of such a discretion might be approached, and has been regularly endorsed and applied to similar discretions to extend time, including that in s 46PO(2): see Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]-[24]; Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624; 151 FCR 524 at [11]-[12].

23    The three principal matters Wilcox J found that a court takes into account are: any explanation for the delay, any prejudice to the respondent or other parties which might be occasioned if the extension of time were granted and the prospects of success of the appeal if an extension of time were to be granted.

24    I explained to Dr Stepien at the hearing matters such as the reasonableness of any explanation for the delay in filing proceedings and any prejudice to the respondents are relevant factors. Dr Stepien’s written submissions reflected a consciousness of these factors. I also explained to Dr Stepien at the hearing that one of the primary considerations to which the Court has regard is whether the applicant has an arguable case. As I have explained in previous decisions, that is because where a party has an arguable case and there are no significant countervailing factors such as prejudice, and where there may be a reasonable explanation for the delay, it is likely to be in the interests of the administration of justice for leave to be granted so that the Court can finally determine the rights of the parties on arguments it has assessed as having some prospects of success: MZABP at [62]-[66], see also: SZTDC v Minister for Immigration and Border Protection [2014] FCA 1298 at [46]-[47]; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [3]-[7].

25    In SZTDC at [48], I made the following observation in relation to an application for extension of time to bring an appeal. That observation is also relevant in the present circumstances:

Even in circumstances where the Court is persuaded there is an acceptable explanation for the delay, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and other parties where there is no realistic prospect the appeal will succeed if an extension of time is granted. Such a process also exposes an applicant to the risk of significantly greater adverse costs orders if the appeal is unsuccessful.

Resolution of the application

26    Both Dr Stepien and counsel for the respondent accepted that the two principal factors to be considered in the present application were Dr Stepien’s explanation for the delay between October 2017 and March 2018, and whether his claims were arguable, or had some prospects of success.

27    It can be accepted, and the respondent did not dispute, that there is no real prejudice to the respondent if an extension of time is granted. While there are some minor aspects of Dr Stepien’s claims which do depend on proving certain conversations and proving what people said, they are not the core aspects of Dr Stepien’s claims and in any event the impugned conduct occurred three to four years ago, which in terms of the litigation of claims, is within the reasonable bounds of what witnesses might be expected to recall. Dr Stepien also contends that his claim has a public interest element, on the basis that what he contends happened to him, has happened and continues to happen, to other men who must engage with the Child Support Agency in relation to child support payments for their children. While I accept that this is a genuine opinion held by Dr Stepien, it is not a matter that I consider should be given any weight in the exercise of the discretion to extend time. Dr Stepien’s complaint is put very much on the basis of allegations about what happened to him, and that is how his application for an extension of time should be approached.

28    I turn then to consider the two core factors on this application.

Dr Stepien’s explanation for the delay

29    In his written submissions Dr Stepien outlines a number of matters, which he contends explain the delay in filing the proceeding. They are:

(a)    His care of his two children, who have since February 2015 lived with him. He also submits he is the sole financial provider for his children.

(b)    That he has had a “multitude” of court proceedings that have required his attention.

(c)    That he has needed to work as much as he can to provide for his children, although he has had to take extended time off work because of the ongoing difficulties in his family life.

(d)    A deterioration in his mental and physical wellbeing.

(e)    The fact that the Commission took a long time to progress his complaint.

(f)    What he describes as “other significant issues in my life which given respondent’s poor commitment or lack of privacy I am unwilling to disclose here but can do solely to the Court”. At the hearing Dr Stepien expanded on this factor by explaining that when he was living in South Australia, and working for South Australian Health, he made complaints of defamation which ultimately went before the South Australian Ombudsman. He stated during his submissions that these matters were not finalised until April 2018, but did not adduce any evidence in relation to these matters or how they may explain his delay in bringing his discrimination claim.

30    The respondent did not substantively dispute the applicant’s account of the many difficulties facing him over the last three or four years. The respondent does point out that the proceedings initiated by the applicant in the Supreme Court of Victoria (to have Ms Stepien declared a vexatious litigant) were commenced after the termination of the applicant’s discrimination complaint by the Commission. Those proceedings were commenced on 8 September 2017, approximately two weeks after the Commission had terminated the discrimination complaint. The respondent submits, and I accept, that the applicant was at that stage aware that time was running in relation to filing proceedings in this Court or the Federal Circuit Court in relation to his discrimination complaint.

31    I am prepared to draw that inference because Dr Stepien is an obviously intelligent man, who now has considerable experience with court proceedings. I can accept that all or most of those court proceedings have arisen out of his very difficult family situation, but nevertheless he has been the moving party in quite a few of them. He well understands court processes, he is highly literate, even if English is not his first language, and I am prepared to infer that when he received the Commission’s letter with the underlined time period of 60 days, he would have appreciated that there was a time limit within which he needed to take action to continue his discrimination complaint, if he wished to. Instead he chose to initiate, and put his energies into, vexatious litigant proceedings against Ms Stepien in the Supreme Court of Victoria. Again, it can be accepted that he genuinely felt compelled to take that step because of what he saw as the continued vexatious applications by Ms Stepien, both in the Magistrates’ Court of Victoria for intervention orders and in the Federal Circuit Court for variations of orders in relation to care and support for the children. Nevertheless, I find that Dr Stepien made a conscious choice to commence these proceedings and, at least in effect, made a conscious choice not to commence proceedings in this Court or in the Federal Circuit Court in relation to his discrimination complaint. It seems to me to be a fair inference to draw from Dr Stepien’s own evidence that he felt he needed to focus his energies on certain aspects of the disputes and grievances he had, rather than pursue all of them. He chose not to pursue the discrimination complaint, and in the scheme of the other matters to which his evidence refers, that is understandable.

32    Further I accept the respondent’s submission that the existence of the Supreme Court proceeding, and any steps the applicant may have been required to take in relation to that proceeding do not satisfactorily explain the delay in filing this application until March 2018. It does not appear from the applicant’s evidence that, objectively, there was a great deal of work to be undertaken in relation to that proceeding during that period. The evidence discloses that the applicant filed some submissions in that Supreme Court proceeding on 9 January 2018, and that there was a hearing listed in either May (or now perhaps June) 2018. It appears from the evidence that Ms Stepien has not taken any part in that proceeding, beyond seeking an adjournment on one or more occasions, and since there has been no trial, it is difficult to understand how that proceeding has occupied a great deal of the applicant’s time, although I can accept it occupied a great deal of his emotional focus and energy.

33    In oral submissions at the hearing, the applicant emphasised that he had more than the Supreme Court proceeding to attend to during the period from October 2017 to March 2018. He described, in submissions, how there were intervention order applications made by his ex-wife and himself earlier in 2017 which had not been heard, that there was a directions hearing in August 2017 and that the final hearing was scheduled for 24 October 2017. Dr Stepien engaged solicitors and paid a substantial amount of money in preparation for that final hearing, but his ex-wife applied for an adjournment, which was granted until May 2018, with a mention in March 2018. Dr Stepien also noted that the child support proceedings he brought in the Federal Circuit Court were heard and determined in September 2017. He further submitted that the Federal Circuit Court referred his matters to the Family Court in September 2017, in relation to changes to the existing orders for residence and access, and that he and his ex-wife went before a senior registrar in the Family Court in November 2017, at which time the registrar rejected Ms Stepien’s application to change the orders made in February 2015. The applicant submitted that a further application was made by his ex-wife in December 2017 in the Family Court regarding the February 2015 orders. Thus, the applicant submitted, he had much more to attend to than simply the Supreme Court vexatious litigant proceedings.

34    I do not doubt Dr Stepien’s narrative in relation to the ongoing disputes between him and Ms Stepien about the care and custody of their children, and their respective applications to restrain each other in relation to conduct they perceive as threatening their respective safety. I express it in that way, for the reasons I have outlined earlier, without expressing any opinions on who is right and who is wrong in those ongoing disputes. However, so far as I can see from the narrative provided by the applicant, these disputes, in the nature of intervention orders, and in the nature of proceedings in the Federal Circuit Court and the Family Court about the children, have been going on since late 2013. The existence of all those disputes did not prevent the applicant from making his complaint to the Australian Human Rights Commission and prosecuting it before the Commission. I do not accept that the continuation of those matters is a reasonable explanation for the applicant not filing an application under s 46PO of the Australian Human Rights Commission Act, if he wished to pursue his discrimination matter as well as all the other matters he had on foot.

35    It can be accepted that the applicant has been under considerable strain for several years now. The way he has approached disputes with his ex-wife, and disputes with the Child Support Agency, may have contributed to that strain. It does appear from the evidence provided by the applicant that he does tend to be combative in his interactions, and does tend to prefer to “take on” circumstances where he feels he has been wronged, rather than let them pass. That does appear to have been a contributing factor to why the applicant has been managing so many disputes, in different places, over the last three or four years. It can be accepted that these may well have taken a toll on his mental and physical wellbeing, as they are likely to have taken a toll on any ordinary person.

36    It can be accepted also that the applicant has faced challenges in balancing his need to work and provide an income for himself and his children, with his pursuit of his various proceedings, and his defence of proceedings brought by his ex-wife. Again, these are the kind of challenges faced by many Australians who must continue to work to support themselves and their families while dealing with difficult and emotional circumstances arising from being a party in litigation and, in particular, litigation arising from a breakdown within a family. Regrettably, these are circumstances with which many Australian families must deal.

37    I do not consider these matters relied on by Dr Stepien identify any particular connection between his failure to lodge a proceeding in this Court or in the Federal Circuit Court within the 60 days allowed to him. In particular, all these factors appear to have continued to exist, right up to the date of the hearing of this application for extension of time, and yet Dr Stepien has been able to prepare a considerable amount of material for this hearing and to present it in a very capable and competent manner.

38    Rather, in my opinion, what occurred between the receipt of the Commission’s termination decision in August 2017 and the commencement of this proceeding in March 2018, was that the applicant made a conscious choice to focus his energies elsewhere. He chose to focus his energies on having his ex-wife declared a vexatious litigant, in order (as he saw it) to put an end to her continued applications against him. He was also focussed on intervention order proceedings in the Magistrates’ Court. No doubt he had little energy left for other matters. It would seem that in or around March 2018 he found enough energy to launch this proceeding. Since that time he has pursued it by, clearly, putting in a great deal of time and effort. I find he was capable of doing so at an earlier stage, but elected not to. In making that finding I am not critical of Dr Stepien: all people who find themselves in difficult and stressful circumstances make those kinds of choices. Nevertheless, and particularly since Dr Stepien’s difficult and challenging circumstances have persisted, on his own evidence, I do not consider that there is an adequate or reasonable explanation for his delay where, as I have found, the delay is really a product of his personal choice. Dr Stepien’s complaints about the Commission’s alleged delay are not to the point. Any delay by the Commission (about which I make no finding) could have no connection with the delay in commencing these proceedings, because time for this proceeding only commenced once the complaint to the Commission was terminated.

Reasonable prospects of success

39    I have set out the applicant’s contentions about the alleged acts of discrimination, as they are reflected in his complaint to the Commission. As I have noted, his affidavit material reflects reasonably consistently, these allegations. During the hearing, and at my invitation, the applicant took the Court through the annexures to his affidavit sworn 26 March 2018, which contain decisions made by the Child Support Agency forming, as I understand it, the substantive parts of his complaint of unlawful discrimination. There are five sets of key documents, and I consider them in chronological order.

40    The first is a decision made on 30 July 2014. This was Dr Stepien’s application for review of the child support payments he had been ordered to make. The decision was made under Pt 6A of the Child Support (Assessment) Act 1989 (Cth) and in particular s 98C(1)(b). Section 98C provides:

(1)    Subject to this Part, if:

(a)    an application is made to the Registrar under section 98B; and

(b)    the Registrar is satisfied:

(i)    that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and

(ii)    that it would be:

(A)    just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(B)     otherwise proper;

to make a particular determination under this Part;

the Registrar may make the determination.

(2)    For the purposes of subparagraph (1)(b)(i):

(a)    the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and

(b)    subparagraph 117(2)(b)(ib) has effect subject to subsections 117(3A) to (3C).

(3)    Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:

(a)    any reference in those subsections to the court were a reference to the Registrar; and

(b)    any reference to an order were a reference to a determination.

41    This decision was also a decision on a cross-application made by Ms Stepien, essentially contending that Dr Stepien should pay more in child support. As the scheme discloses, the task for the decision-maker is to determine whether the child support assessment under review is unfair and whether one or more of the “grounds” (as set out in s 117 of the CSA Act) for departure from the assessment under review have been made out.

42    Dr Stepien had, in accordance with the legislation and with policy set out in the Australian Government’s “Child Support Guide”, relied on three reasons identified in the scheme.

43    The decision made by the delegate set out that Dr Stepien had been assessed as required to pay annual rates of child support ranging between $4,392 and $19,754, for periods between 24 January 2014 and 23 April 2015. The differences in the setting of the annual rates appear to be related to the increased time that the children spent in Dr Stepien’s care from the start of that period to the end in April 2015. It appears from the decision that Ms Stepien, in her cross-application, sought to have Dr Stepien’s assessment of his capacity to pay child support based on an annual taxable income of at least $130,000, whereas at April 2015 his annual taxable income had been assessed at $60,000.

44    The delegate’s decision sets out the reasons advanced by Dr Stepien, which were:

(a)    that the child support assessment was unfair because the paying parent (Dr Stepien) had paid or transferred money, goods or property to the child, the receiving parent or a third party for the benefit of the child; and

(b)    the child support assessment was unfair because of a parent’s income, property and financial resources or earning capacity.

45    The delegate’s decision then sets out, in considerable detail the arguments made by Dr Stepien about the levels of payments he had made, the current orders in effect from the Federal Circuit Court, and Ms Stepien’s responses.

46    The delegate notes that the amounts that Dr Stepien had been ordered (by orders that appear to have been by consent) to pay in relation to spousal maintenance, responsibility for car loans, one-off financial payments and educational costs, were all payments that were to be in addition to any child support assessment. The delegate correctly, it appears, found that those payments cannot in and of themselves make the child support assessment unfair. At the hearing of the extension of time application, Dr Stepien criticised this approach, but it is clearly one required by the legislative scheme and by the orders of the Federal Circuit Court in relation to maintenance and support for the children. The delegate then sets out the evidence and arguments made by Dr Stepien about Ms Stepien’s income, property, financial resources and earning capacity. The delegate also sets out Ms Stepien’s responses. The approach taken by the delegate was to accept Ms Stepien’s claims about her receipt of social security payments, and her ongoing notification of Centrelink of any income she earns and to accept Centrelink’s records as an accurate record of her income. Dr Stepien again was critical of this approach, but objectively it is difficult to see, in the absence of evidence that the delegate found acceptable to the contrary, why this approach demonstrates even at an inferential level, that the delegate was making determinations adverse to Dr Stepien because he was a man. Dr Stepien was particularly critical of the following two passages in the delegate’s reasons:

I understand the children are currently in child care although neither parent provided any documentation as to which days the children attend. Nevertheless, I accept the care arrangements would make it difficult for Mrs Stepien to secure and maintain any meaningful employment.

I accept Mrs Stepien’s care arrangements have justified the decisions she has made about her work. Accordingly, the second criterion is not satisfied and I cannot find her earning capacity makes the child support assessment unfair.

47    The criticism made of these paragraphs by Dr Stepien is that the delegate appears to have been prepared to accept it was reasonable for Ms Stepien not to be working more because of her childcare responsibilities, whereas Dr Stepien was expected to continue to work and discharge his childcare responsibilities. As I understand these passages, read in the context of the rest of the decision, the delegate rejects both Dr Stepien and Ms Stepien’s claims that the other parent’s earning capacity makes the child support assessment unfair for the same reason: namely that, applying the criteria required to be considered, although each parent has changed their working pattern, neither parent has demonstrated that the other parent’s changes were not justified. I accept that Dr Stepien may not agree with this analysis, but it is difficult on the face of the delegate’s decision to construe the delegate’s reasons as ones which are motivated by the fact that Dr Stepien is a male and Ms Stepien is a female, rather than any objective characterisation of their circumstances in light of the criteria applied.

48    The rest of the decision goes on to consider Ms Stepien’s cross-application and in that part of the decision there is detailed consideration of Dr Stepien’s financial circumstances. The delegate concludes as follows:

In view of the above, I am satisfied the estimates of income provided by Mr Stepien do not reflect the income and financial resources available to him. The difficulty is to determine the income and financial resources that are presently available to him and that should be considered in determining his ATI for child support purposes.

The parents have ongoing conciliation hearings and are endeavouring to reach agreement concerning a range of matters including the ongoing care arrangements. While I am mindful of the primary duty the parents have to financially support their children, I am reluctant to increase Mr Stepien’s child support liability at this time.

In conclusion, I am satisfied Mr Stepien has income and financial resources available to him that are not reflected in his current estimate of income. However, I am not convinced the discrepancy causes the current assessment to be unfair.

49    In other words, in addition to the findings made about Ms Stepien’s capacity to be employed, the delegate had also been persuaded that Dr Stepien had not completely disclosed all his sources of income and financial resources. Again Dr Stepien may disagree with the delegate’s views. Nevertheless in my opinion it is clear that these factors had some bearing on the outcome of the delegate’s decision. None of those factors constitute prohibited reasons under the Sex Discrimination Act.

50    The next act of discrimination relied on by the applicant related to a decision made on 16 January 2015. That was also a review decision of an objection lodged by Dr Stepien about his child support payment assessment. That objection was allowed in part. The reasons for the decision are detailed and set out all of the material provided by Dr Stepien, noting that although Ms Stepien participated in a conversation about the objection, she did not provide any response or any evidence and so the delegate based the decision entirely on the evidence provided by Dr Stepien. In other words, the decision was made on the basis of the material that could be most favourable to the arguments Dr Stepien was making. In the decision the delegate works through the number of nights that the children have spent with each parent in the relevant period and reaches the conclusion that the largest proportion of nights were nights spent in the shared care of both parents, rather than with one parent or the other. There is nothing in this decision which suggests, in my opinion, that the approach taken by the decision-maker was affected in any way by the fact that Dr Stepien was a man and Ms Stepien was a woman. I do not detect in this decision any “preference” for the mother’s position over the father’s position. Rather, the decision sets out an objective basis for the conclusion reached on the material before the decision-maker.

51    The next act of discrimination relates to a decision communicated to Dr Stepien on 22 December 2015 again concerning an application by Dr Stepien to change his child support assessment. The conclusion of the decision-maker in that case was that Dr Stepien had not established the current child support assessment was unfair and again the decision-maker set out detailed reasons for that conclusion, including detailed references to the material provided by Dr Stepien. Again the decision-making relied on Centrelink records to establish the level of Ms Stepien’s income, and again Dr Stepien criticised this in the extension of time hearing before me. As I have already explained, I see no error or unlawful approach in the decision-maker looking at records kept by another federal agency for the purpose of ascertaining a parent’s income. It is true, as Dr Stepien pointed out, that he had provided some evidence of the level of expenditure of Ms Stepien which seemed inconsistent with her income – such as taking out a car loan for a car valued at $28,000. However, the delegate concluded that he “cannot find that Ms Stepien is currently earning income or has financial resources or assets that result in an unfair assessment”, even though he accepted it was “questionable” that Ms Stepien should take out a loan of this kind. Dr Stepien criticised this finding as again one which did not accept the position he had put in terms of what the material disclosed. But these were matters for the decision-maker and I see nothing on the face of the reasons which suggests that the conclusions reached by the decision-maker were reached because of Dr Stepien’s gender, rather than because the decision-maker was simply not persuaded that the material was probative enough for him to make the finding that Dr Stepien invited him to make.

52    Dr Stepien also points to a decision made on 17 March 2016, which relates to an application by Dr Stepien for an extension of time in which to lodge an objection to the decision I had just discussed. The extension of time was refused and detailed reasons were given for that refusal. Again, I see nothing in these reasons which suggests in any way that the decision-maker was motivated to the conclusion reached because of Dr Stepien’s gender, rather than the delegate’s assessment of the weight and persuasiveness to be given to the material before him or her. I note in this decision the delegate also refers to an appeal by Dr Stepien to the Social Security Appeals Tribunal (which has now merged with the Administrative Appeals Tribunal). This appears to have been an appeal from the decision I have discussed above: namely, the one made on 30 July 2014. Dr Stepien is recorded as having lodged an objection to this and an objection decision was made on 19 November 2014, from which Dr Stepien appealed to the Social Security Appeals Tribunal. On both the internal review and the Social Security Appeals Tribunal appeal, Dr Stepien was unsuccessful.

53    It is telling that none of these records disclose any argument by Dr Stepien at internal review level, or at Social Security Appeals Tribunal level, that these decisions were being made against him because of a prohibited reason, namely that he was a man. One might have imagined that if Dr Stepien felt that these decisions were motivated by a prohibited reason that is a matter he would have raised both on internal review and before the Social Security Appeals Tribunal. Dr Stepien is a capable and forthright person, and it is difficult to understand why he did not raise his concerns with the decision-makers themselves. However, none of these decisions record any such argument by Dr Stepien, including this application to extend time for a further objection by him to the child support assessment dated 22 December 2015. I note that at the end of this decision Dr Stepien was advised of his right of appeal from the refusal of an extension of time to the Administrative Appeals Tribunal. He does not appear to have taken advantage of that right of appeal.

54    In summary, there is no basis in any of this material to find that Dr Stepien’s arguments of unlawful sex discrimination have any reasonable prospects of success.

55    It was apparent from the submissions made by Dr Stepien at the hearing that one of the key comparisons he seeks to draw is between what he perceives to have been the attitude of a Federal Circuit Court judge in September 2017 (Judge Stewart) towards his circumstances, and the attitudes taken by each of the delegates in the decisions to which I have referred. Dr Stepien’s contention is that Judge Stewart accepted the evidence he put forward about Ms Stepien’s financial circumstances and about her earning capacity, as well as about the unfairness to him of the previous regime of child support, set aside the previous regime and put in place a regime that was, in Dr Stepien’s opinion, a fairer reflection of the respective earning capacities and financial resources of himself and Ms Stepien. Judge Stewart was also the judge who had made the final orders in relation to residence and access in February 2015. It is clear from Dr Stepien’s submission that he perceives Judge Stewart as possessing the correct understanding of the respective circumstances of himself and Ms Stepien.

56    There is no doubt that the orders made by Judge Stewart in September 2017 required Ms Stepien to assume more financial responsibility for a number of matters concerning their children.

57    The September orders by Judge Stewart also transfer the proceeding between Dr Stepien and Ms Stepien to the Family Court of Australia. It is worthwhile setting out the notes to the Court’s orders that relate to the decision to transfer the proceeding in full:

A.    The reasons for the transfer of the proceedings to the Family Court of Australia are as follows:-

(i)    the parties are in chronic conflict and require considerable judicial attention, which cannot be accommodated in this Court;

(ii)    Judge Stewart has determined that the matter ought to be allocated to another Judicial Officer and the size of the file dictates that a transfer to another Federal Circuit Court Judge would be unduly onerous;

(iii)    it appears that the major issue in dispute is the question of overseas travel for the children with each or either of the parties, however the history of the matter is such that those issues are likely to expand;

(iv)    One 22 April 2016, the Mother attempted to reopen the substantive parenting arrangements and the Court dismissed that application (largely) on the basis that there was no change of circumstances sufficient to warrant revisiting those applications; and

(v)    The parties are involved in proceedings in other State courts and the Husband has advised the Court this day that he is seeking to have the Wife and/or any proceedings issued by her declared as vexatious.

B.    The cumulative effect of these issues is such that it renders the case inappropriate to remain in the Federal Circuit Court of Australia.

58    Dr Stepien informed the Court that although the matter had been transferred to the Family Court, there had been no substantive hearings as at the time of the extension of time application hearing.

59    While it is true that Judge Stewart’s orders reflect some readjustment of the parties’ financial responsibilities for the care and support of their children, again there is nothing in the orders or in the Court’s notes to suggest that the reason the Court embarked on a readjustment was that it had a view that Dr Stepien had in the past been the subject of unlawful discrimination. Rather, it appears the judge took a different view, at least on the material before her Honour, about what the appropriate adjustment was as between the two parents. It is not difficult to understand how a person in Dr Stepien’s position looks at different decisions made on material that he considers to be substantially the same, where different outcomes are reached, and finds those different outcomes challenging to come to terms with. The fact that the minds of administrative decision-makers and judges may reasonably differ when faced with even substantially similar material is a feature of both administrative decision-making in Australia, and judicial decision-making. The fact that there are such differences does not of itself suggest any impermissible consideration, or any unlawful consideration. It simply reflects the fact that the minds of different decision-makers can be differently persuaded by material. Judge Stewart also had the opportunity of hearing directly from both Dr Stepien and Ms Stepien, whereas the decision-makers at the Child Support Agency were making decisions on the papers.

60    Dr Stepien also identified as unlawful discrimination statements in some correspondence he had received from the Child Support Agency in February and March 2015. He contends that through a series of communications the amounts the Agency told him he needed to pay went up, then down and then it was acknowledged he was entitled to a refund. When he queried all these changes, he contends he was told during a telephone conversation with Agency officers that the correspondence was automatically generated and had reversed the proportion of time the children spent with each parent (72% with him, and 28% with his ex-wife) because it was so uncommon to have children living with their father rather than with a female parent. Dr Stepien alleges that payments were incorrectly deducted from him as a result of this computer error, and that it took more than one phone call to resolve this issue.

61    Finally, in terms of the matters to be identified as acts of discrimination for the purposes of his complaint, Dr Stepien pointed to a conversation which he alleged occurred in around May 2016 where Dr Stepien contends he was told by an officer of the Child Support Agency that Ms Stepien did not have to provide updated details to the Agency, although he did. This is a conversation to which Dr Stepien referred in his complaint to the Commission, in the extracts I have set out above.

62    Neither of the allegations in [60] and [61] above would be sufficient to give any contention of unlawful sex discrimination reasonable prospects of success. The reason for the treatment may be mistakes, or lack of attention to detail, or inadequate understanding of what information participants in the child support system were required to provide. Nothing in what Dr Stepien has produced gives rise to an inference that the reason for the communications having the content they did was because he was a man.

63    I explored with Dr Stepien at the hearing what kind of relief he considered would flow from a finding in his favour that such conversations occurred and that it was treatment which was in contravention of the Sex Discrimination Act because it treated him differently because he was a man in contrast to the treatment of Ms Stepien. Dr Stepien maintained that this was the kind of situation that he would expect to be remedied by the relief he sought in his originating application. It is appropriate to set out that relief:

The Applicant also claims other relief.

1.    An order is made to have court appointed auditor and investigation be made to the departments two branches, child support agency and centrelink in respect to sex discrimination breaches with the department implementing recommendation of such a review.

2.    Employees of the department that have breached Sex Discrimination Act 1984 be removed from their positions and be directly financially liable for their actions.

3.    The department to made a formal apology, admitting to discrimination of male parents in a form of a official letter addressed to applicant and provided to the applicant, made available on both branches of the department website homepage and in three major Australian newspapers.

4.    The department be financially liable for their discrimination and immeasurable grief it caused and damages be exemplary in amount as seen fit by this Court and be donated to a foundation of applicants choice.

5.    The department repays what it has wrongfully removed from applicant with penalties.

6.    If this Court feels there was more than just discrimination on behalf of the department it is referred for judicial review.

64    It is apparent on its face that much of the relief sought by the applicant is not the kind of relief the Court is able to grant, nor the kind of relief that it is likely to grant in an exercise of discretion. Even if Dr Stepien were to prove conversations with Child Support Agency staff to the effect of those he alleges, I consider it is unlikely to result in any relief being granted in his favour and it does not substantially add to the prospects of success in his claim.

Conclusion

65    Therefore on consideration of all the circumstances, including all of the evidence Dr Stepien has put before the Court and the submissions he has made, I am not persuaded that it is appropriate to extend the time in which he can bring a proceeding under s 46PO of the Australian Human Rights Commission Act.

66    In particular, I consider that Dr Stepien has not provided an adequate explanation for the considerable delay in lodging his originating application. Even if I had been satisfied that his explanation was adequate, I would have still been persuaded that his underlying allegations in the proceeding do not have any reasonable prospects of success and indeed cannot be characterised as arguable.

67    None of those conclusions are intended to diminish what I accept is the genuine sense of unfairness that Dr Stepien feels as a result of decisions made about his obligations to pay child support. Whether the decisions were fair or unfair, or were decisions that the Court itself would have made, are not to the point. The Court must be persuaded that Dr Stepien has reasonable prospects of proving contraventions of the Sex Discrimination Act and it cannot be satisfied on that matter.

68    The respondent, quite properly, has submitted that the application should be dismissed with no order as to costs. I consider that is the appropriate order to be made.

Associate:

Dated:    19 July 2018