FEDERAL COURT OF AUSTRALIA

Douthie v Commonwealth of Australia [2022] FCA 720

ORDERS

THE COURT ORDERS THAT:

1.    Leave to make an application pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1984 (Cth) be refused.

2.    The applicant pay the respondent's costs of the application to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant, Mr Douthie, seeks leave to proceed under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) in respect of his claim against the respondent, the Commonwealth of Australia, alleging sex discrimination in contravention of the Sex Discrimination Act 1984 (Cth) (SD Act).

2    The Commonwealth entity at the centre of the complaint is Services Australia (Agency), which relevantly delivers child support payments and services.

3    In his application for leave Mr Douthie states that the discrimination complained of is 'Theft. Responsibility of a father revoked. Child stolen from me. Forced to pay for other people's children on top of my own'.

4    Mr Douthie seeks an apology, compensation of $3.2 million and a Royal Commission.

5    The application follows Mr Douthie's complaint against the Agency made by emails dated 18 August 2021 and 20 August 2021 to the Australian Human Rights Commission (AHRC) alleging that the Agency discriminated against him on the basis of his sex, being male. Mr Douthie requested that the AHRC terminate his complaint without inquiry so that he could proceed to this Court to 'start a hearing and get to trial'.

6    The Agency sought to respond to Mr Douthie's complaint. It provided a response that was provided directly to Mr Douthie and to the AHRC.

7    In summary, the Agency denied that it had discriminated against Mr Douthie on the basis of his sex, as alleged or at all, and said further that it had acted consistently with its powers under the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) and the Child Support (Assessment) Act 1989 (Cth) (CSA Act).

8    By letter dated 20 October 2021 the AHRC invited Mr Douthie to provide any further information or comments in support of his complaint, but nothing further was received.

9    On 3 November 2021 a delegate of the President of the AHRC wrote to Mr Douthie giving him formal notice of the delegate's decision to terminate Mr Douthie's complaint under s 46PH(1B)(a) of the AHRC Act. The delegate provided written reasons.

10    As referred to in its reasons, the AHRC identified from the material provided by Mr Douthie that he appeared to be alleging direct discrimination by the Agency against him on the grounds of his sex by the Agency's conduct in:

(a)    unlawfully garnishing or intercepting his tax refund in the financial year 2019/2020;

(b)    refusing to give him credit for his non-agency payments;

(c)    listing non-dependent children as dependents;

(d)    charging him a high rate of child support for one child; and

(e)    not recognising the percentage of care he provides to his child.

11    Under the AHRC Act, after a complaint is terminated, the person affected by the alleged discrimination may apply in certain circumstances to have the allegations decided by this Court or by the Federal Circuit and Family Court of Australia. Relevantly, in the present circumstances, Mr Douthie requires leave to do so.

12    For the reasons that follow, I have concluded that leave should be refused.

Statutory context

13    Section 5(1) of the SD Act provides that:

Sex discrimination

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

(b)    a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

…

14    Section 46P of the AHRC Act relevantly provides that a person may lodge a written complaint with the AHRC alleging unlawful discrimination. The complaint must set out as fully as practicable the details of the conduct relied upon.

15    Section 46PH(1B)(a) of the AHRC Act relevantly provides that the President of the AHRC must terminate a complaint if the President is satisfied that the complaint is trivial, vexatious, misconceived or lacking in substance.

16    Section 46PO of the AHRC Act relevantly provides:

Application to court if complaint is terminated

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(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.

(3A)    The application must not be made unless:

(a)    the court concerned grants leave to make the application; or

(b)    the complaint was terminated under paragraph 46PH(1)(h); or

(c)    the complaint was terminated under paragraph 46PH(1B)(b).

…

Principles - leave applications

17    So, by operation of those provisions, the President, being satisfied that the complaint was lacking in substance, was obliged to terminate the complaint. Mr Douthie must therefore obtain leave to pursue an application to this Court.

18    In James v WorkPower Inc [2018] FCA 2083, Mortimer J made the following observations as to the matters relevant to the exercise of the discretion to grant leave:

[31]    Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding … or to issue a proceeding …, the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose.

[32]    The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission.

19    Her Honour concluded:

[37]    I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level.

[38]    There may be a range of other permissible considerations including:

(1)    the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;

(2)    the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);

(3)    how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;

(4)    whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;

(5)    whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;

(6)    the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;

(7)    whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and

(8)    other factors that are often considered in leave applications - such as prejudice to a party.

[39]    As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules.

20    These principles were applied and further explained by Abraham J in Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [86]-[90].

AHRC's reasons

21    As is apparent from [38(3)] of James, the manner in which the AHRC has addressed the complaint may be relevant. Therefore, it is appropriate to set out parts of the AHRC's reasons in detail.

22    Relevantly, the reasons set out the response of the Agency to the complaint as follows:

- [Services Australia] denies that it has discriminated against you on the basis of your sex in the administration of child support services to you.

- It has acted consistently with its powers and obligations under the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) and Child Support (Assessment) Act 1989 (Cth) (CSA Act).

- The Child Support Registrar has a statutory obligation to pursue recovery of all registered child support debts unless the debts are not economical to pursue or are not legally recoverable.

- Section 72 of the CSRC permits the Registrar to intercept a tax refund to satisfy a child support debt.

- On 16 July 2020 the agency advised you that it would intercept your 2019-20 tax refund in order to satisfy your outstanding child support debt totally $6,289.19.

- On 18 July 2020 the agency intercepted part of your tax refund and applied it against your child support debt.

- A prescribed non-agency payment is a non-cash payment of a type prescribed by Child Support (Registration and Collection) Regulations 2018 made directly to a receiving parent or a third party which may be credited against a child support debt.

- Under section 71C of the CSR Act, credit for a non-agency payment can only be given for a maximum of 30% of the paying parent's monthly child support liability and only where the paying parent is paying at least 70% of their monthly child support liability on time.

- During the period of 23 January 2019 to 5 June 2020, the agency accepted prescribed non-agency payments totalling $7,207.97 from you towards your child's dental and school fees between 12 December 2018 to 5 June 2020.

- During the period 6 April 2019 to 7 August 2020 the agency advised you on 4 occasions of the requirements for when a non-agency payment credit may be applied.

- The agency was unable to apply your prescribed non-agency payment credits to satisfy your child support debts in full as only 30% of your monthly liability in prescribed non-agency payments each month can be paid in this way.

- On 17 July 2020, the agency received a payment of $1,450 from you towards your child support liability. As this payment was at least 70% of your monthly child support liability, the agency credited 30% of your monthly child support liability in prescribed non-agency payments.

- Consistent with the agency's legislative obligations no further non-agency payments could be credited that month, and as such, on 18 July 2020, the agency intercepted part of your 2019-2020 tax refund to satisfy your remaining child support debt.

- Under section 46 of the CSA Act, a parent's dependent children must be taken into account in the calculation of that parent's child support income. This applies to relevant dependents of both parents regardless of the parent's sex. The parent's child support income is used as part of the calculation to determine the applicable child support liability.

- The receiving parent had advised the agency that they have three dependent children, with one child currently in their primary care.

- A parent is able to object to a decision on the particulars of a child support assessment including a reduction in a parent's child support income on account of their relevant dependent children. You have not lodged any such objection. External review is also available in the Administrative Appeals Tribunal.

- Under the CSA, a parent's percentage of care for a child which is part of the administrative formula to determine the child support assessment, is calculated based on the care they are likely to provide for child in the relevant care period (usually a 12 month period) under the CSA Act.

- From 6 December 2018 to present, your percentage of care during the care period 2 November 2018 to 31 January 2020 was 9%.

- On 10 August 2021, you notified the agency of your change of care from 1 February 2020 and the agency is currently considering whether a new percentage of care can be determined.

- Under the CSRC Act a parent can object to a decision concerning the percentage of care and external review is also available in the Administrative Appeals Tribunal. You have not lodged any such appeal.

23    The AHRC decision-maker then sets out her reasons:

My decision

Section 46PH(1B)(a) of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) says that the President must terminate a complaint if she is satisfied that a complaint is lacking in substance.

I have considered all the information that has been provided and I wish to advise that I have decided to terminate your complaint under section 46PH(1B)(a).

I understand you may be disappointed by my decision and I would like to explain the reasons for my decision.

Reasons for my decision

To support a claim of direct sex discrimination under the SDA, a complainant is required to provide or point to information which indicates that because of their sex, they were treated less favourably than a person of a different sex would be treated in the same or not materially different circumstances.

I appreciate you are very aggrieved by the way that Service Australia has made decisions pertaining to your child support liability. However, other than your assertions, you have not provided any information to support that Services Australia made such decisions because you are male or would have made different decisions, in the same or not materially different circumstances for a person of a different sex to you.

Rather, the information before me supports that Services Australia has applied the requirements as set out in the CSRC Act and CSA Act when making decisions with respect of calculating your child support liability, seeking to recover child support debts from you and calculating how much for non-agency payments you can use towards your child support debts. For example, while you claim that Services Australia's decision to intercept your 2019-2020 tax refund was 'unlawful', it appears that such action is permitted under section 72 of the CSRC to satisfy a child support debt. The information before me supports that at the relevant time, you had an outstanding child support debt totally $6,289.19 and Services Australia notified you that it was seeking to intercept your tax refund to recover this debt.

Similarly, while you claim that Service Australia failed to credit non-agency payments that you made towards your child support debt, it appears that it had already credited you the maximum allowable 30% of your monthly child support liability in non-agency payments under the CSRC Act and as such was unable to make any further credits to you. The information before me supports that Services Australia would have made the same decisions regarding child support debs pertaining to a person of a different sex to you.

Finally, there also appears to be no information to support that your sex was a factor in the way that Services Australia has calculated your percentage of care for your child or the number of dependent children in its assessment of your child support liability.

I further note that in the event that you dispute the percentage of care attributed to you or have other concerns about child support assessments, you as a parent can make an application for a child support assessment to be changed if you feel it does not accurately reflect one or both parents' incomes, or financial resources. You can also lodge an 'objection' with Services Australia in relation to an assessment decision or a refusal to change an assessment. If a parent (such as yourself) is unhappy with the outcome of this internal review process, they can make an application to the Administrative Appeals Tribunal (AAT) for a review of Services Australia's decision.

As you may be aware, the AAT is an independent statutory authority with a specialist Child Support Division which is tasked with reviewing administrative decisions regarding child support. I understand that while there are timeframes for lodging objections with CSS and applications to the AAT, parents can ask for an extension of time, and a decision to refuse an extension of time can also be subject to review. If dissatisfied with the AAT's decision a parent may be able to pursue the matter to court on a question of law.

I appreciate that you are very aggrieved by the matters set out in your complaint and that you feel that as a father, you have been treated unfairly. However, for the abovementioned reasons, I have decided to terminate the complaint under section 46PH(1B)(a) of the AHRCA because I am satisfied that the complaint is lacking in substance.

Mr Douthie's arguments on his leave application

24    Mr Douthie is self-represented. I have taken this into account in considering the arguments he has raised. He clearly holds a deeply-felt grievance with respect to events that have affected his access to his daughter and the level of the child support that he has paid to the mother of his daughter over many years.

25    His submissions tended to address what he perceives as systemic issues with access by fathers to their children and what he says are connected high suicide rates, particularly in fly-in fly-out workers. He expressed concern at the ease with which he perceives the legislative system permits tax refund entitlements to be 'grabbed' and 'stolen'. These themes permeated all of his submissions, and whilst I do not doubt that his sense of grievance is genuine, it was necessary to encourage Mr Douthie to identify any particular examples in his dealings with the Agency that he considered indicated he was treated differently because he is a man, when compared with the manner in which he assumes a woman, or a person who otherwise does not identify as a man, but in a similar position to him would be treated.

26    Mr Douthie was not able to point to any such direct alleged sex discrimination.

27    He was able to point to some examples of matters that affected him directly.

28    For example, he submitted that:

(a)    he was entitled to a tax refund for the financial year 2019/2020 of $5,963.92, but the Agency just 'take it … They have the power and this ability, and they will just take it, and they've taken it my entire adult life … It stops you from planning, it stops you from those little bits to keep ahead. It forces your poverty, and it's unplanned and you're not ready for it';

(b)    he pointed to confusion caused by what he says is conflicting information about the amount he was obliged to pay and the unsigned status of a letter of 7 August 2020 which explained to him that his current ongoing child support was $1,346.50 per month, and that if he paid 70% of that ($942.55 per month), the Agency would credit the remaining 30% from his 'prescribed non-agency payment' balance of $4,264.89 until that amount was exhausted, after which he would need to pay the full amount due each month;

(c)    he claimed the Agency purposefully refused to apply the 30% from the non-agency payment balance so that it would appear he was in arrears;

(d)    he claimed the Agency asserted he had 'zero care' for his child, which was untrue;

(e)    he referred to bank statements that indicated he made payments of $942.55 per month (and sometimes more, such as $1,000) between the period 2 July 2020 to 27 August 2021 said to be in accordance with or consistent with the letter of 7 August 2020, but said that he was still treated as if he were behind in payments;

(f)    he claimed that the timing of his tax returns and the assessments was such that he was made to appear to be in default;

(g)    he referred to a number of annual child support assessments all bearing issue date 15 December 2020 but that referred to different assessment periods between August 2020 and October 2021 and set out the assessment calculations involved, and indicated monthly rates varying between $1,346.50 and $1,344.33; and

(h)    he referred to a number of specific payments and purchases he had made for his daughter beyond the regular monthly payments, such as purchasing a car, driving test fees and making deposits of pocket money.

29    Mr Douthie also submitted that his daughter's mother claimed additional dependants for the purpose of claiming payments and that there is no incentive for her to work because his payments increase the less she earns.

30    I will return to some of those matters, but relevantly it can be seen that they do not on their face evidence any particular treatment of Mr Douthie because he is male. When I again pressed Mr Douthie to explain the connection with the allegation of sex discrimination, he said:

Why is it to do with sex? It's because I'm a single father. It's because we're working, because we're paying on a tax file number, and it's because it's easy. They don't think we can fight back from it.

31    More generally, he alleged that the Agency's conduct (or the conduct of the respondent) as to his payment regime was criminal.

Content of complaint that may be considered

32    The terms of s 46PO(3) are important. I must consider this application on the basis that the complaint that Mr Douthie seeks to pursue in this Court is the same as that which was before the AHRC. In this regard I accept the respondent's submission that the nature of Mr Douthie's claim as made to the AHRC was one of direct discrimination, as summarised in the AHRC's letter and set out at [10] above. Mr Douthie's generalised assertions that men are treated less favourably under the statutory regime than women were not the subject of the claim.

33    Accordingly, in assessing whether Mr Douthie's claims are at least reasonably arguable, as required by the application of the principles already discussed, I have considered each component of the claims before the AHRC, taking into account the evidence filed on behalf of the respondent, and noting again that the task at hand is to consider the grant of leave and not to undertake a final hearing.

Matters the subject of the terminated complaint

Percentage of care assessment

34    A parent's percentage of care for a child, which is part of the administrative formula to determine the child support assessment, is calculated based on the care they are likely to provide for the child in the relevant care period: Part 5 Division 4 of the CSA Act.

35    In this case, the evidence indicates that the Agency assessed Mr Douthie's percentage of care in accordance with the information the Agency had as to the care arrangements for the child. So much is apparent from a letter to Mr Douthie of 2 July 2019 which records when the Agency was given information as to the daughter's care and the nature of that information; a letter to Mr Douthie of 28 September 2021 which refers to a change in information as to the number of nights per year when the daughter was with her respective parents, and seeking evidence supporting such change; and the Agency's decision, reflected in its working papers in evidence, to reject Mr Douthie's request for a new determination of the care percentage as he failed to provide proof to support his claim.

36    There is nothing in the evidence that suggests that the Agency's decision to reject Mr Douthie's request for a new determination of the care percentage related in any way to the fact that Mr Douthie is male. Rather it involved an application of a formula based on evidence to hand.

37    According to the AHRC (and not the subject of any dispute), Mr Douthie did not elect to object to the decision concerning the percentage of care, a course open under s 80A of the CSRC Act.

Rate of child support payable

38    The rate of child support payable is based on an administrative formula provided in Part 5 of the CSA Act which takes into account the parent's child support income, percentage of care and costs of the child (including the number and age of the children) but does not take into account a parent's sex. If parents or children have special circumstances, a parent may apply for, or the agency may initiate, a change of assessment: Part 6A of the CSA Act.

39    The respective parents are referred to as the paying parent or the receiving parent, depending upon the direction in which the payments flow. In this case, Mr Douthie was the paying parent and the mother of his daughter was the receiving parent.

40    It is apparent that Mr Douthie's rate of child support took into account his child support income compared to that of the receiving parent and the respective levels of care of their child. This is apparent from seven notices issued to Mr Douthie comprising child support assessment notices for each of the respective periods: 12 February 2020 to 17 February 2020; 18 February 2020 to 29 March 2020; 30 March 2020 to 30 April 2020; 1 May 2020 to 28 May 2020; 29 May 2020 to 30 June 2020; 1 July 2020 to 31 July 2020; and 1 August 2020 to 31 October 2021. Each assessment sets out the eight steps involved in calculating the child support amount, applying the legislative formula. There is no reference to the sex of the paying or receiving parent in those assessments.

41    It is apparent from the assessments that the Agency declined two requests by Mr Douthie for a change in the amount of child support assessed. However, it is also apparent that the decisions were made having regard to the legislative requirements, including taking into account that the receiving parent was working and was not found to have changed their working arrangements in order to reduce their child support income.

42    According to the respondent (and not the subject of any dispute), Mr Douthie did not elect to object to the Agency's decision to refuse to make a change in the assessment decision, a course apparently open under s 80(1) of the CSRC Act.

Alleged failure to give credit for non-agency payments

43    Pursuant to the legislation, where a paying parent makes a 'prescribed non-agency payment', that is a non-cash payment of a type prescribed by the Child Support (Registration and Collection) Regulations 2018 (Cth) made directly to a receiving parent or a third party, such payment may be credited against a child support liability. However, as explained by the respondent, by operation of the terms of s 71C of the CSRC Act, credit for a non-agency payment can only be given for up to a maximum of 30% of the paying parent's monthly child support liability, and only where the paying parent is paying at least 70% of their monthly child support liability on time.

44    Furthermore, the credit can only be applied to arrears in child support liability that accumulate after the payer has notified the Agency of the prescribed payment, and only where at least 70% of the liability is satisfied by cash or a particular kind of non-agency payment credited under s 71 or s 71A of the CSRC Act.

45    The evidence indicates that the Agency advised Mr Douthie of the requirements for when a non-agency payment may be applied. The evidence comprises numerous telephone attendance notes.

46    The respondent submitted that it acted consistently with s 71C of the CSRC Act by:

(a)    accepting non-agency prescribed payments from Mr Douthie in respect of payments that he had made towards the dependent child's dental and school fees between 12 December 2018 and 5 June 2020;

(b)    not accepting non-agency prescribed payments from him in respect of penalties incurred due to late payment of fees; and

(c)    not applying his prescribed non-agency payment credits to satisfy his child support debt in full.

47    Although Mr Douthie complained that he was given insufficient credit for non-agency payments, he did not engage with the specific requirements of the legislation or the calculations. The respondent's submission was therefore not seriously challenged in any way. Further, there was no suggestion on the documents that the fact that Mr Douthie is male was relevant to any of the analyses and decisions to credit or refuse to credit non-agency payments.

Alleged listing of children as dependents of the receiving parent

48    A parent's relevant dependent children must be taken into account in the calculation of that parent's child support income and this applies to the relevant dependents of both parents, regardless of the parent's sex: s 46 of the CSA Act.

49    The evidence indicates that the receiving parent had advised the Agency of a change in her arrangements. As to her three relevant dependent children, she had two children in her care from 30 November 2020, but one child was no longer in her care from 25 September 2020. Mr Douthie was informed of this by letter dated 15 December 2020.

50    The evidence indicates that once it was informed of the change, the Agency took into account only the relevant children in the care of the receiving parent, as advised by the receiving parent, in the assessment of Mr Douthie's child support liability.

51    It was obliged to have regard to the number of dependent children of the receiving parent when assessing Mr Douthie's child support obligations in accordance with the CSA Act. That Mr Douthie is male was not relevant to this task.

52    Mr Douthie had a telephone call with the Agency on 22 January 2021 in which, based on the note of the call, it was explained to him that although he is not assessed to pay child support for all of the receiving parents' children, there is an allowance based on the number of dependent children that is taken into account when assessing his child support obligations. As counsel for the respondent observed during the hearing, one can perhaps understand why Mr Douthie might feel aggrieved by the fact he has to pay 'a bit more money' because the receiving parent has dependent children other than his own. But that is the statutory regime and Mr Douthie's complaint is really a broader one about that regime. Mr Douthie was not able to point to any examples where the provisions are applied differently depending upon the sex of the paying parent.

53    Again, according to the respondent (and not the subject of any dispute), it was open to Mr Douthie to object to a decision on the particulars of the Agency's child support assessment relevantly pursuant to s 80(1) of the CSRC Act, but he did not do so.

Allegations concerning interception of tax refund

54    The Child Support Registrar is permitted to intercept a tax refund to satisfy a child support debt from a person regardless of their sex: s 72 of the CSRC Act.

55    The respondent submitted that the Registrar will generally automatically obtain and apply a refund amount if there is a relevant debt that is due and payable and will apply the amount unless there are reasons not to do so. Such reasons include if the relevant debtor would suffer financial hardship: Child Support Guide at 5.2.8.

56    The evidence indicates that Mr Douthie was advised of the Agency's process and decision making concerning tax refund intercepts. In particular, he was advised of the Agency's decision to intercept his 2019-2020 tax refund by applying $4,503.73 against the outstanding debt by letter dated 18 July 2020. There was no evidence on this leave application that he had claimed financial hardship at the time.

57    The respondent submitted that the Agency was prohibited from applying Mr Douthie's prescribed non-agency payment credit to his child support debt because the Agency had already credited the prescribed non-agency payments for the month. This submission is consistent with the information contained in the Agency's response referred to in the AHRC's reasons.

58    There is no suggestion that the provisions were applied differently depending upon the sex of the paying or receiving parent.

Conclusion

59    Against the backdrop of that discussion it is appropriate to return to Mr Douthie's submissions collected at [28] above. It can be seen that the matters that concern him directly fall within the heads of claim covered above. He refers to the entitlement to intercept tax refunds; whether or not he was in arrears such that any such entitlement arose; the crediting or refusal to credit non-agency payments; his assertion as to the percentage of care days; and general confusion as to the quantum referred to in a number of different child support assessments, although issued on the same day.

60    Mr Douthie has not persuaded me that he has any real prospect of establishing that any such conduct constituted sex discrimination within the meaning of the SD Act. Whilst he has made clear his perceptions as to alleged misconduct and grievances, he has not addressed the particular matters relevant to s 5 of the SD Act. Direct discrimination, as defined by s 5(1) of the SD Act (extracted above), occurs if the following two limbs are satisfied: the applicant was treated less favourably than a person of a different sex, in circumstances that are the same or not materially different (the comparator); and if so, a reason for the less favourable treatment was the applicant being a man (causation). Mr Douthie has simply not addressed or referred to circumstances that would meet the comparator limb.

61    I have taken into account the fact that this claim is clearly important to Mr Douthie. I accept that he has made concerted attempts to meet his child support obligations. I also accept that the manner in which certain information was provided to him by the Agency was confusing. In particular, the receipt of multiple assessments, albeit for different time periods, that all seem to have been issued on the one day, understandably caused Mr Douthie a level of frustration and uncertainty. However, that manner of communication is not on its face linked in any manner to his sex. Further, having regard to other matters said in James to be potentially relevant to the exercise of the discretion, I also note that there were various avenues of objection to Agency decisions that were open to Mr Douthie. He was also informed by the AHRC in its reasons of the manner in which review of internal decisions of the Agency might be sought in the Administrative Appeals Tribunal. The AHRC's reasons and the Agency's comments provided a good summary of the various calculations and factors that were relevant to Mr Douthie's concerns. Mr Douthie was armed with that information prior to this application but has not engaged with it.

62    In conclusion, I have not seen and am not persuaded that there is a proper basis in the material before me that supports an argument that the fact that Mr Douthie is male was a relevant consideration in any of the actions complained of. There is no rational factual substratum for his allegations. I do not consider that Mr Douthie's claim in relation to unlawful discrimination on the basis of sex is reasonably arguable.

63    It follows that I decline to grant leave. Costs should follow the event in the usual way. Mr Douthie should pay the respondent's costs, to be assessed by a registrar if not agreed.

Associate:

Dated:    22 June 2022