FEDERAL COURT OF AUSTRALIA

Daley v Child Support Registrar [2019] FCA 1097

ORDERS

THE COURT ORDERS THAT:

1.    The application under the Administrative Decisions (Judicial Review) Act 1997 (Cth) for an extension of time is refused.

2.    The application for remedies under s 39B of the Judiciary Act 1903 (Cth) is refused.

3.    The applicant is to pay the costs of the respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    These proceedings concern an application for judicial review of a decision by the Child Support Registrar, now the respondent, made on 4 October 2006. The applicant, who is self-represented, seeks an extension of time to bring the proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and he also seeks discretionary relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the same decision. Both the time issues and the merits of the application were fully argued.

2    The questions arise under the Child Support (Registration and Collection) Act 1988 (Cth) and the regulations made under s 124A of that Act, being the now repealed Child Support (Registration and Collection) (Overseas-related Maintenance Obligations) Regulations 2000 (Cth) (Regulations).

3    The applicant has filed three affidavits dated 6 March 2019, 6 May 2019 and 14 May 2019.

4    The respondent has filed two affidavits by Ms Lynette James, Senior Government Lawyer, dated 12 June 2019 and 3 July 2019.

5    The applicant has a son named Carl. He was born in New Zealand on 27 February 1988. (This date is of significance because one of the complaints of the applicant is that, in the registration, his son’s date of birth was altered to 27 February 1998.) It appears that the applicant resided in New Zealand for some period but left that country prior to 1993.

6    The decision the applicant seeks to impugn is the decision of the respondent Registrar notified to the applicant in a letter dated 4 October 2006 to register a registrable maintenance liability under reg 11, being an “agency reimbursement liability” as defined in reg 5. The application for registration of that liability was made by New Zealand Inland Revenue Child Support. The amount notified in the letter dated 4 October 2006 was AUD $19,666.33.

7    Before turning to the basis upon which the applicant seeks an extension of time or the exercise in his favour of the discretion to grant relief under s 39B, I note that the applicant sought to object to the October 2006 decision to register by application dated 2 October 2009. Section 82 of the Child Support (Registration and Collection) Act required that objections be made within 28 days after service of the notice of the decision. Section 89(1) provided that a person could apply to the Registrar for an extension of time.

8    The applicant’s extension of time was refused by letter dated 13 October 2009. Reasons were then given. The applicant lodged an appeal to the Social Security Appeals Tribunal, presumably under s 91(5), which was received on 16 October 2009. On 20 November 2009, the Tribunal decided to affirm the decision under review.

9    On 14 January 2010, the applicant commenced judicial review proceedings in the then Federal Magistrates Court to challenge the Tribunal’s decision. The applicant, in person, applied to that Court jointly with the Registrar for the application to be dismissed, and it was so dismissed on 27 April 2010.

10    The basis on which the applicant seeks an extension of time to lodge an application under the Administrative Decisions (Judicial Review) Act, or the exercise in his favour of the discretion to grant relief under s 39B, is set out in the applicant’s affidavit dated 6 March 2019. Treating that material as a submission or as a statement of grounds in relation to his application for an extension of time, the basis is as follows (as written):

The delay in requesting a review has been caused by:

1.    The respondent continually not considering the issues raised and never providing the legislative grounds for their actions or positions.

2.    He second respondent Matthew will not provide surname to be included in these documents. His response letter dated 28/7/19 continues to reflect the no review of the facts.

3.    DHS [Department of Human Services] continues to confuse the applicant with their non response to the issues raised and obstructing natural justice.

4.    Completion of additional forms as required by the court, with no assistance from lawyers or legal aid as they refuse to take on the case against DHS.

11    Leaving aside for the moment the substance of the applicant’s case, I find that there is no satisfactory explanation for the delay of many years. The present proceedings were commenced on 8 March 2019, whereas the decision sought to be impugned was made on 4 October 2006 and an application for an extension of time to lodge an objection to that decision was refused by the Tribunal on 20 November 2009.

12    This is relevant both to the extension of time and to the question whether this Court would grant any relief under s 39B of the Judiciary Act, the grant of such relief being discretionary and unreasonable delay on the part of the applicant being a recognised discretionary reason for refusing relief: see, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [53], [56] per Gaudron and Gummow JJ; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400.

13    In relation of the first ground, I do not accept that the respondent has not considered the issues raised or provided the legislative grounds for the Registrar’s actions. I refer by way of example to the letters to the applicant sent by or on behalf of the Registrar or the Department of Human Services and dated 4 October 2006 (notifying the applicant of the registration decision and its effect), 13 October 2009 (notifying the applicant of the Registrar’s refusal to extend time to object, and of his review rights, and providing reasons), on or around 23 October 2010 (notifying the applicant of the results of an investigation of and decision on a claim by him for compensation on 31 August 2009), and 26 July 2018 (setting out a detailed response to the applicant’s request that the registration decision be investigated).

14    In relation to the second ground, the position of the then second respondent is not relevant. The proceedings are no longer pressed in relation to the then second respondent, who was not an appropriate or necessary party.

15    In relation to the third ground, I repeat my conclusions in [13] above, treating the reference in the third ground to the Department of Human Services as a reference to the respondent Registrar.

16    In relation to the fourth ground, I take into account generally that the applicant is now self-represented, but I do not accept that the applicant has shown that this explains the delay of many years. For example, by letter dated 27 February 2012 from Legal Aid New South Wales the grant of legal aid to the applicant was terminated as the author of the letter said: “I do not consider that the case you wish to make against the Child Support Registrar has merit.” It was also then pointed out to the applicant that he was then more than two years outside of the time to appeal the decision of the Tribunal made on 2 December (sic) 2009.

17    I also take into account, as tending in the applicant’s favour on the time issues, that it appears that the applicant is under a present liability or has a current debt.

18    In these circumstances, there would need to be a clear and strong case to weigh in the balance in order to revisit acts and decisions having the history I have outlined.

19    One perhaps overarching contention, implicit in the applicant’s submissions, is that it is the Child Support (Assessment) Act 1989 (Cth) which controls the registration and collection of the applicant’s New Zealand liability. It is in that Act that “eligible children” is an important concept: see in particular Part 3. However, it is not that Act which is relevant to the registration and collection of a registered maintenance liability of a reciprocating jurisdiction, which in this case is New Zealand. Similarly, the Child Support (Assessment) Act does not by implication negative or detract from the scheme under the Child Support (Registration and Collection) Act, the Regulations and the Australia-New Zealand Agreement, which is Schedule 1 to Regulations and is described as the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance, signed in Canberra on 12 April 2000. There is no basis for the applicant’s complaint that because the Child Support (Assessment) Act does not allow for the registration in the present case then it follows that the Child Support (Registration and Collection) Act, the Regulations and the Agreement also do not allow for that registration.

20    Another contention which the applicant seeks to advance is that the Child Support (Assessment) Act 1989 (Cth) was effective only from 1 October 1989 and applied to children born on or after that date. It is then claimed that to overcome this problem, the Registrar changed Carl’s date of birth to 27 February 1998. However, the applicant accepts that the Child Support Act 1991 (NZ) allows for retrospectivity of child support.

21    The issue of changing Carl’s date of birth is in substance a minor one, although it looms very large in the applicant’s mind and appears to be the basis for his contention that fraud was involved. However the explanation which has been provided to the applicant, for example by letter dated on or around 23 October 2010 from the Registrar, the letter dated 7 February 2012 from Legal Aid New South Wales and the further letter from the Registrar dated 26 July 2018, is that the Department’s computer system was designed for the registration of domestic child support cases and will not allow registration after a child turns 18. When, as in this case, registering overseas liabilities for children who are over 18 years of age, the Department is required to alter the child’s date of birth, to overcome the computer limitation. That action did not affect the way in which the applicant’s child support arrears was calculated. The applicant advanced no cogent basis for impugning this explanation. What has occurred does not establish that Carl was not an “eligible child”, which is a concept relevant not to the present scheme of collecting a registrable maintenance liability but rather, as I have said, to the Child Support (Assessment) Act, in particular Part 3 of that Act.

22    The point of substance seems to hinge on what the applicant claims is an impermissible retrospectivity in the registration of his New Zealand liability. In this respect it appears that the mother of Carl registered for child support from the applicant on 25 October 1991. The child support assessment ended with arrears owing on 26 February 2004. As I have said, the Agreement was signed in Canberra on 12 April 2000. The Regulations commenced on 1 July 2000. There would appear to be no basis on which it may be contended that the Regulations, or the Agreement, applies only to children born after those dates. Neither would there appear to be any basis on which it may be said that the Regulations, or the Agreement, applies only to liabilities arising after those dates. I have already explained, at [19] above, that the Child Support (Assessment) Act is not significant in this respect.

23    Regulation 3(1) provides that the purpose of the Regulations is to give effect to Australia’s obligations under international agreements or arrangements relating to obligations such as the applicant’s and states that the Regulations are to be construed and administered consistently with that purpose. Relevantly, Article 3 provides that the Agreement applies irrespective of the date on which a decision was made, and that where a decision has been made prior to the date on which the Agreement entered into force the Agreement applies for payments falling due under the decision before and after that date.

24    The definition of “agency reimbursement liability” in reg 5 proceeds by reference to a liability of a parent of a child to pay a periodic amount for the maintenance of the child, where the amount has been paid by an overseas authority to the person who has the care of the child and for which the overseas authority seeks reimbursement from the parent. I am not satisfied that there is a sufficient basis for judicial review of the 2006 decision of the respondent Registrar.

25    Retrospectivity is not a straightforward concept but was explained by McHugh and Gummow JJ in Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at [57]-[58] as follows:

The respondents stressed that s 269N(1) [of the Customs Act 1901 (Cth)] operates “retrospectively”. However, in Coleman v Shell Co of Australia [(1943) 45 SR (NSW) 27 at 30], Jordan CJ pointed out that “there has been some ambiguity in the use of the word ‘retrospective’”. His Honour went on to distinguish between a statute which provided that as at a past date the law shall be taken to have been that which it was not, and the creation by statute of further particular rights or liabilities with respect to past matters or transactions.

Section 269N did not render the concession order retrospective in the sense that it provided that, as at a past date, being 1 September 1987, and thereafter, the law was to be taken to have been that which it was not. Rather, the result was that, on 3 June 1994, there were brought into existence fresh rights or liabilities in respect of matters or transactions which had occurred on or after 1 September 1987.

(Footnotes omitted.)

26    In the present case the applicant had New Zealand liabilities at all relevant times and the registration of the “agency reimbursement liability” in 2006 occurred well after the making of the Agreement in 2000 and the commencement of the Regulations on 1 July 2000.

27    The applicant’s contention, as I understood it, to the effect that Carl’s date of birth did not allow for registration under the Child Support (Assessment) Act fails for the reasons I have already considered and rejected at [19]-[21] above.

28    A number of the applicant’s points were to the effect that what has occurred was not in accordance with the Agreement.

29    The applicant referred to Article 11, which deals with provisional orders, as there defined. Such a decision is one which has no effect unless and until confirmed by a judicial authority of the other Contracting State. In my opinion, this condition is not met because no such order has been made in the applicant’s case. To the extent that the applicant sought to draw from Article 11 that child support liabilities may only arise from judicial orders, I reject that submission. I note that liability may also arise, as in the present case, from an assessment issued by an administrative authority, as contemplated by Article 1(2)(a). Article 11 is not relevant to this case.

30    The applicant referred to Article 23, which is concerned with the exchange of information. The applicant submitted that Article 23(3) meant that one of the relevant authorities, or perhaps both, had obtained information which they were not permitted to have. However all that this provision provides is that Article 23 is not to be construed so as to impose on the administrative or judicial authorities of a Contracting State the obligation to obtain information which is otherwise not obtainable under the laws or in the normal course of administration of those authorities. In my opinion, Article 23(3) does not have the operation for which the applicant contends and is not of present relevance.

31    The applicant referred to the preamble to the Agreement which has as one of its recitals “CONSIDERING the principle that parents have an obligation, according to their capacity to pay, to provide their children with a proper level of financial support”. The submission appeared to be that the New Zealand assessment was made on the basis of capacity to earn and not capacity to pay. The implication was that the New Zealand assessment could not be registered. In my opinion, there are two answers to this contention. First, as a matter of fact, there is not before the Court any material to found the conclusion that the New Zealand assessment was made without reference to capacity to pay. Second, the general terms of this recital in the preamble to the Agreement could not control or displace the terms of the operative provisions of the Agreement and the Regulations. Those operative terms do not distinguish between the possible different bases of assessments. I do not accept the submission that the New Zealand assessment means that New Zealand is in breach of the Agreement.

32    The applicant referred to Article 3(2) which, as I have said, provides that where a decision has been made prior to the date on which the Agreement enters into force, the Agreement applies for payments falling due under the decision before and after that date. I do not see how this provision assists the applicant. Indeed, it runs counter to his submissions concerning impermissible retrospectivity.

33    The applicant referred to Article 7(2)(b) and (c). He also made what I understood to be a consequential submission that monies could not be recovered under Article 12 because the New Zealand decision was not entitled to recognition and enforcement under Part IV, that Part commencing with Article 7. The provisions in Article 7(2) allow recognition or enforcement the decision to be refused by, relevantly, an administrative authority of the State addressed if (b) recognition or enforcement is incompatible with the public policy of the State addressed; or if (c) the decision was obtained by fraud. In my opinion, neither of these contentions is made out and no issue arises under Article 12. First, insofar as part of the argument on behalf of the applicant appeared to involve a factual contention as to who was in control of Carl in the year 2000, there is no material before this Court which would allow that factual contention to be addressed, one way or the other, and I do not regard it as relevant to any question arising under Article 7 or to any question of error of law or jurisdictional error. Similarly, a mere error in the New Zealand assessment, if such an error could be made out in the appropriate forum, would not establish either of the bases on which recognition or enforcement of the New Zealand decision may be refused under Article 7(2)(b) or (c).

34    The applicant referred to Article 5 which provides that, subject to certain conditions, an administrative authority of a Contracting State has jurisdiction to, relevantly, suspend, modify or revoke a decision if, according to the national law of that Contracting State, the authority has that jurisdiction. I do not see the present relevance of this provision.

35    The applicant also referred to s 72AA of the Child Support (Registration and Collection) Act. The applicant has not sought judicial review in this Court of any decision or action under that section. There does not appear to be in evidence anything to enliven that provision, such as a written notice to the Secretary under that section. Any question would be at best only consequential on success by the applicant in relation to some other contention.

36    None of these matters, in my opinion, found a sufficiently arguable issue to weigh in the applicant’s favour in respect of either the extension of time application or the discretion to withhold relief under s 39B. I am not persuaded that the Registrar in 2006 committed any legal error in registering the registrable maintenance liability.

37    I also note that a significant obstacle in the applicant’s path is that what he requires is arguably not simply an extension of time or a favourable exercise of discretion in this Court but judicial review of the discretionary decision of the Tribunal on 20 November 2009 not to grant an extension of time. He has not attempted to do so. Whether or not that decision strictly speaking replaced the registration decision, the failure to seek merits review of the registration decision within the applicable time limit, and successive decisions refusing an extension of that time limit, would provide substantial discretionary grounds for refusing relief on this application.

38    The applicant has also filed and served a notice under s 78B of the Judiciary Act stating that the acceptance of the New Zealand application for registration and collection of the New Zealand child support liability or debt is invalid as constituting a tax or an acquisition of property other than on just terms. There is no substance in these grounds in light of the decisions in Luton v Lessels [2002] HCA 13; 210 CLR 333 and Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141.

39    In Luton, Gleeson CJ said, at [14]-[17]:

The Assessment Act creates a private or personal obligation, in the form of a debt payable by the liable parent to the eligible carer. The debt is recoverable by the carer. The creation of a legal obligation, enforceable by private action, in a parent, to pay for the support of a child, is not taxation. It is a scheme for the creation and adjustment of private rights and liabilities. But the existence of the obligation is of significance in considering the aspect of the legislative scheme upon which the plaintiff principally relies, which is in the Registration and Collection Act. What is alleged to be taxation is in substance no more than a mechanism for the enforcement of a pre-existing private liability.

If a child support assessment is registered under the Registration and Collection Act the debt payable by the liable parent to the eligible carer is extinguished, and replaced by a debt payable by the liable parent to the Commonwealth. The Commonwealth, as necessary, collects the amount owing, and pays it into the Consolidated Revenue Fund. An amount equal to the amount collected is transferred to the Child Support Account. Payments of child support are then made to the carer from the Child Support Account. What is involved is a collection mechanism to facilitate the recovery of child support payments that a parent becomes liable to make under the Assessment Act. It enables the discharge of a personal obligation created by the Assessment Act. A multiplicity of payments may be involved, the amounts of payments are likely to be modest, and many carers would lack the means or the will to undertake private recovery proceedings. The practical advantages of such a scheme are obvious, but they do not include any financial benefit to the Commonwealth.

The payment of moneys collected by the Commonwealth into the Consolidated Revenue Fund, is necessitated by s 81 of the Constitution, which refers to “revenues or moneys”. The legislation does not have either the purpose or the effect of raising revenue for the Commonwealth. Its purpose is to create, and facilitate the enforcement of, private rights and liabilities. The Assessment Act creates a personal liability in a parent to the carer of a child; the Registration and Collection Act gives the carer the facility, in exchange for extinguishment of the liability to the carer, to have the Commonwealth recover the child support payments assessed and pay an equivalent amount to the carer.

The legislation does not bear the character of taxation.

See also Gaudron and Hayne JJ at [47]-[61], McHugh J at [79]-[80], Kirby J at [121] and Callinan J at [178]-[180]. In this case child support obligations were imposed on the applicant under New Zealand law rather than, as was the case in Luton, the Child Support (Assessment) Act 1989 (Cth). Relevantly, however, the Regulations and Child Support (Registration and Collection) Act are, as in Luton, “a collection mechanism to facilitate the recovery of child support payments” that the applicant became liable to make pursuant to those obligations. Those pieces of legislation do not, therefore, bear the character of taxation. Any consequential issues of incontestability or as to the requirements of s 55 of the Constitution, to the extent those issues are raised on the applicant’s case, do not therefore arise: cf Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 at 40-1 per Dixon CJ; Air Caledonie International v Commonwealth [1988] HCA 61; 165 CLR 462.

40    In Davis, which also concerned the Child Support (Registration and Collection) Act, the Full Court held at [29]:

The fourth matter said to be triable was whether the actions of the Registrar in taking Mr Davis’ interest in the Gold Coast land caused his wife economic harm and whether it also conferred upon the Commonwealth a benefit. These two propositions had as their terminus the notion that the child support legislation thereby operated as a law with respect to the acquisition of property which was not accompanied by just terms and was, therefore, invalid by reason of s 51(xxxi) of the Constitution. The learned primary judge rejected this as an issue worth trying on the basis that enforcement provisions designed to allow admitted debts to be recovered could not possibly be an acquisition of property to which s 51(xxxi) of the Constitution was directed. We agree. The proposition that the enforcement and execution provisions of statutes governing the civil process of courts involves an acquisition of property to which the language of s 51(xxxi) is directed is without merit. Execution by civil process is properly to be seen as being in the same category, for s 51(xxxi) purposes, as the making of a sequestration order: Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 372 per Dixon CJ; Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 170-171 per Mason CJ, 187-188 per Deane and Gaudron JJ. The acquisition of an asset as part of the process of the curial enforcement of debts is an acquisition of a kind which “is inconsistent or incongruous with the notion of just terms” (Mutual Pools 179 CLR at 187). Such execution provisions are to be seen as a means of “resolving or adjusting competing claims, obligations or property rights of individuals as an incident of the regulation of their relationship, e.g., the relationship between a bankrupt and the creditors in the bankruptcy” (Mutual Pools 179 CLR at 171).

41    The application under the Administrative Decisions (Judicial Review) Act for an extension of time is refused. The application for remedies under s 39B of the Judiciary Act is also refused, for the same reasons, as a matter of discretion. The applicant is to pay the costs of the respondent, as agreed or assessed.

Associate:

Dated:    12 July 2019