Daley v Child Support Registrar

the legislative scheme 9 Before proceeding further it is convenient to set out the relevant legislative scheme as it applied at the time. 10 The starting point is s 124A of the Registration and Collection Act which provided that the regulations may make provision for and in relation to, among other things, giving effect to an international agreement that relates to maintenance obligations arising from family relationship, parentage or marriage. For the purposes of s 124A, the term "international agreement" was defined to mean an agreement between Australia and a foreign country or two or more foreign countries. 11 The Regulations were made under the Registration and Collection Act and commenced on 1 July 2000. Their stated purpose was to give effect to Australia's obligations under international agreements or arrangements in relation to maintenance obligations arising from the family relationship, parentage and marriage: see reg 3(1). 12 Definitions for terms used in the Regulations are set out in reg 5. Relevantly the term "Australia-New Zealand Agreement" is defined to mean "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, a copy of the text of which is set out in Schedule 1". 13 Part 2 of the Regulations is headed "Registration and enforcement". 14 Regulation 11 concerned "additional registrable maintenance liabilities". Among other things, it provided that a liability was "a registrable maintenance liability" if it was "an agency reimbursement liability": see reg 11(3)(a). In turn, an "agency reimbursement liability" was defined in reg 5 to mean a liability: (a) that is a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child; and (b) for an amount that has been paid by an overseas authority to the person who has the care of the child; and (c) for which the overseas authority seeks reimbursement from the parent or step-parent. 15 Regulation 12 of the Regulations provided: (1) If the Registrar receives an application for registration of a liability that is a registrable maintenance liability under regulation 11, the Registrar must, within 90 days after receipt of the application, register the liability by entering particulars of the liability in the Child Support Register. (2) The Registrar may refuse to register a liability that is a registrable maintenance liability under regulation 11 if the Registrar is satisfied that the liability arises in a manner that is inconsistent with an international agreement or arrangement with a reciprocating jurisdiction, relating to maintenance obligations arising from family relationship, parentage or marriage. 16 We pause to observe that the registrable maintenance liability which the Registrar registered pursuant to reg 12 and which is the subject of the Registration Decision was an "agency reimbursement liability" within the meaning of reg 11 (see [14] above). 17 As set out at [12] above, the Australia-New Zealand Agreement (ANZ Agreement) is included at Sch 1 to the Regulations. The preamble to the ANZ Agreement provides that the Government of Australia and the Government of New Zealand (referred to as the Contracting States): 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, CONSIDERING the enforcement abroad of maintenance decisions gives rise to serious practical and legal difficulties, DESIRING to conclude an Agreement on the jurisdiction of their administrative and judicial authorities, to facilitate recognition and enforcement of decisions, to exchange information and to provide for mutual co-operation in the collection and payment of monies in relation to child and spousal maintenance, HAVE AGREED AS FOLLOWS: 18 Thereafter follow the operative terms of the ANZ Agreement including: (1) Art 1 which sets out the meaning of "decision" for the purposes of the agreement; (2) Art 3 which provides that the ANZ Agreement applies irrespective of the date on which a decision was made and, where a decision has been made prior to the date on which the ANZ Agreement entered into force, it applies to payments falling due under the decision before and after that date; (3) Art 5.1 which provides that, subject to Art 5.2 and Art 5.3, an administrative authority of a Contracting State, in this case the Government of Australia or the Government of New Zealand, has jurisdiction to make, suspend, modify or revoke a decision if, according to the national law of that Contracting State, the authority has that jurisdiction; (4) Art 7 which concerns recognition and enforcement and, among other things, provides: 1 A decision made by an administrative or judicial authority of a Contracting State (the State of origin) is entitled to recognition and enforcement by operation of law in the territory of the other Contracting State (the State addressed). 2 Recognition or enforcement of a decision may be refused by an administrative or judicial authority of the State addressed: (a) if the administrative or judicial authority of the State of origin did not have jurisdiction under Article 4, 5 or 11; or (b) if recognition or enforcement is incompatible with the public policy of the State addressed; or (c) if the decision was obtained by fraud. (5) Art 11 which concerns provisional orders which are decisions made in a Contracting State which have no effect unless and until confirmed by a judicial authority of the other Contracting State; and (6) Art 23 which concerns the exchange of information between the Central Authority of each Contracting State, being the Commissioner of Inland Revenue in New Zealand and the Child Support Registrar in Australia: see Art 21.

the primary judge's decision 19 The primary judge noted that the basis upon which Mr Daley sought an extension of time to lodge an application under the ADJR Act or the exercise in his favour of the discretion to grant relief under s 39B of the Judiciary Act was as set out in his affidavit dated 6 March 2019, which his Honour treated as a submission or as a statement of grounds in relation to his application for an extension of time, and was 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. 20 The primary judge observed that the question of delay was relevant both to the question of whether the Court would grant an extension of time to file the application under the ADJR Act and to the question of whether the Court would grant any relief under s 39B of the Judiciary Act given that the grant of such relief is discretionary and unreasonable delay on the part of an applicant is a recognised discretionary reason for refusing relief: Daley at [12]. 21 To that end, the primary judge found that there was no satisfactory explanation for Mr Daley's delay of many years in commencing the proceedings in this Court: the Registration Decision which Mr Daley sought to impugn was made on 4 October 2006; an application for extension of time to lodge an objection to that decision was refused by the Tribunal on 20 November 2009; and the proceedings were only commenced on 8 March 2019. His Honour rejected each of the grounds relied on by Mr Daley as a basis on which the Court would grant an extension of time and observed that, in the absence of a satisfactory explanation for the delay of many years, "there would need to be a clear and strong case to weigh in the balance in order to revisit acts and decisions", having regard to the history of the matter: Daley at [18]. 22 The primary judge then considered Mr Daley's submissions. 23 First, the primary judge referred to Mr Daley's overarching contention, implicit in his submissions, that the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) controls the registration and collection of his New Zealand liability. The primary judge pointed out that the Assessment Act is not relevant to the registration and collection of a registered maintenance liability of a reciprocating jurisdiction, in this case, New Zealand, and that that Act does not by implication distract from the scheme under the Registration and Collection Act, the Regulations and the ANZ Agreement. The primary judge found that there was no basis for Mr Daley's complaint that because the Assessment Act does not allow for registration in the present case it follows that the Registration and Collection Act, the Regulations and the ANZ Agreement also do not allow for the registration: Daley at [19]. 24 Secondly, the primary judge addressed Mr Daley's contention that the Assessment Act was only effective from 1 October 1989 and applied to children born on or after that date and that, to overcome that problem, the Registrar changed Carl's date of birth from 27 February 1988 to 27 February 1998. His Honour noted, however, that Mr Daley accepted that the Child Support Act 1991 (NZ) allowed for retrospectivity of child support: Daley at [20]. 25 The primary judge described the changing of Carl's birth date as a minor issue, although his Honour noted that it loomed large in Mr Daley's mind and appeared to be the basis for a contention that fraud was involved. The primary judge pointed out that the Registrar and others had provided Mr Daley with an explanation as to why the change had been made, namely: (1) 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; (2) in a case such as Mr Daley's where there was registration of overseas liabilities for a child over 18 years of age, the Department was required to alter the child's date of birth to overcome the computer limitation; and (3) doing so did not affect the way in which Mr Daley's child support arrears were calculated. 26 The primary judge found that Mr Daley advanced no cogent basis for impugning that explanation and that what had occurred did not establish the Carl was not an "eligible child", a concept relevant to the Assessment Act: Daley at [21]. 27 The primary judge noted that Mr Daley alleged that there was an impermissible retrospectivity in the registration of his New Zealand liability in that Carl's mother registered for child support from Mr Daley on 25 October 1991, the child support assessment ended with arrears owing on 26 February 2004, the ANZ Agreement was signed on 12 April 2000 and the Regulations commenced on 1 July 2000. His Honour held that there was no basis upon which it could be contended that the Regulations or the ANZ Agreement apply only to children born after the dates on which those instruments were signed or commenced nor was there any basis on which it could be said that the Regulations or the ANZ Agreement apply only to liabilities after those dates: Daley at [22]. 28 The primary judge referred to reg 3(1), which sets out the purpose of the Regulations and provides that the Regulations are to be construed and administered consistently with that purpose, and to Art 3 of the ANZ Agreement (see [18(2)] above). His Honour noted that the definition of "agency reimbursement liability" in reg 5 of the Regulations 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. His Honour was not satisfied that there was a sufficient basis for judicial review of the Registration Decision: Daley at [23]-[24]. 29 Thirdly, the primary judge addressed the concept of retrospectivity, observing that it was not straightforward and referring to the decision in Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at [57]-[58]. His Honour found that Mr Daley had New Zealand liabilities at all relevant times, that the registration of the "agency reimbursement liability" occurred well after the making of the ANZ Agreement in 2000 and the commencement of the Regulations on 1 July 2000 and that Mr Daley's argument that Carl's date of birth did not permit registration under the Assessment Act failed for the reasons already given: Daley at [25]-[27]. 30 Fourthly, the primary judge turned to consider Mr Daley's contention that what had occurred was not in accordance with the ANZ Agreement. His Honour made the following findings (at [29]-[34]): (1) Art 11 was not relevant to Mr Daley's case because no order contemplated by that article had been made and it was not the case that child support liabilities could only arise from judicial orders. Such liability could also arise from an assessment issued by an administrative authority as contemplated by Art 1(2)(a), as was the case in relation to Mr Daley's liabilities; (2) Art 23, which is concerned with information exchange, does not have the operation for which Mr Daley contends and is not relevant. The primary judge rejected Mr Daley's submission that Art 23(3) means that one, or perhaps both, of the relevant authorities had obtained information which they were not permitted to have; (3) Mr Daley's contention, based on the second recital in the preamble to the ANZ Agreement, that the New Zealand assessment was made on the basis of capacity to earn and not capacity to pay and thus it could not be registered was rejected. This was because first, as a matter of fact, there was no material before the Court on which the conclusion could be based that the New Zealand assessment was made without reference to capacity to pay; and secondly, because the general terms of that recital in the preamble could not control or displace the terms of the operative provisions of the ANZ Agreement and the Regulations which do not distinguish between the possible different bases of assessments; (4) Art 3.2 did not assist Mr Daley but rather ran counter to his submissions concerning impermissible retrospectivity; (5) Art 7.2(b) and (c) did not assist Mr Daley. Those paragraphs allow recognition or enforcement of the decision to be refused by an administrative authority of the State addressed if recognition or enforcement is incompatible with the public policy of that State or if the decision was obtained by fraud, neither of which was made out; and (6) Art 5 has no present relevance to Mr Daley's case. 31 To the extent that Mr Daley also referred to s 72AA of the Registration and Collection Act, the primary judge noted that he had not sought judicial review of any decision or action under s 72AA and there was nothing in the evidence to enliven that section: Daley at [35]. 32 His Honour concluded that none of these matters founded a sufficiently arguable issue to weigh in Mr Daley's favour in respect of either the extension of time application or the discretion to withhold relief under s 39B of the Judiciary Act. His Honour was not persuaded that the Registrar committed any legal error in registering the registrable maintenance liability in 2006: Daley at [36]. 33 Mr Daley had also filed and served a notice under s 78B of the Judiciary Act in which he contended that the acceptance of the New Zealand application for registration and collection of the New Zealand child support liability or debt is invalid as it constitutes a tax or an acquisition of property other than on just terms. The primary judge rejected that contention, finding that it had no substance in light of the decisions in Luton v Lessels (2002) 2010 CLR 333 and Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141.

the grounds of appeal and Mr Daley's submissions 34 Mr Daley relies on an amended notice of appeal filed on 8 November 2019. Without intending any disrespect to Mr Daley who is a self-represented litigant and, in the circumstances, has done his best, that document is prolix and somewhat difficult to follow. In a number of paragraphs Mr Daley recites the findings of the primary judge without identifying any error while in other paragraphs Mr Daley expresses his agreement with the findings of the primary judge and proceeds to set out, in effect, in a submission, why he says that is so. 35 Having regard to the amended notice of appeal, including the matters referred to in paragraph 21 under the heading "ORAL SUBMISSION", it is apparent that Mr Daley takes issue with the primary judge's orders and contends that the primary judge erred: (a) in relation to the findings about the change in Carl's birth date when registering the New Zealand liability and the applicability of the Assessment Act; (b) in finding that there was no explanation for the delay in bringing the proceedings. Mr Daley refers to extracts from a number of decisions and says that the delay can be explained because he was attempting to "have the matter either reviewed by the Department of Human Services, by the judiciary or by a tribunal"; (c) in concluding that there was no arguable case in respect of either the extension of time application or the application under s 39B of the Judiciary Act; (d) in his Honour's interpretation of the Regulations and the various articles of the ANZ Agreement relied on by Mr Daley; (e) in his finding that s 72AA of the Registration and Collection Act had no bearing on the legality of the Registration Decision; and (f) in failing to address Mr Daley's argument about s 51(xxxi) of the Constitution included in his notice under s 78B of the Judiciary Act. 36 Mr Daley relied on his written submissions filed on 15 April 2020. Mr Daley submits that the primary judge erred "in not correctly considering the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time". Mr Daley's submissions then focus on his contention that the Registrar should not have registered the New Zealand liability. In summary, Mr Daley submits that is so because that liability was for a child born before the commencement of the Assessment Act and thus doing so involved a degree of retrospectivity which is contrary to public policy. He contends that, in those circumstances, Art 7(2)(b) of the ANZ Agreement would permit an Australian authority not to recognise the liability. 37 We do not propose to set out Mr Daley's submission in any further detail.

consideration 38 The first issue to be addressed is the nature of the appeal. 39 Mr Daley appeals from the orders made by the primary judge refusing an extension of time to bring the proceeding under the ADJR Act and refusing relief under s 39B of the Judiciary Act. The order refusing an extension of time to bring a proceeding under the ADJR Act is interlocutory. Mr Daley requires leave to bring an appeal from that order. However, Mr Daley has an appeal as of right from the order refusing relief under s 39B of the Judiciary Act. 40 That said, both the refusal of an extension of time to bring a proceeding under the ADJR Act and the refusal of relief under s 39B of the Judiciary Act involved the exercise of a discretion on the part of the primary judge. Thus, despite the different nature and effect of the orders made by the primary judge, in both cases Mr Daley, in order to succeed, must demonstrate that the primary judge erred in the exercise of his discretion in refusing the extension of time to bring the proceeding under the ADJR Act and in refusing relief under s 39B of the Judiciary Act. 41 Also common to both the applications is the issue of delay. 42 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 Wilcox J set out the principles which guide the exercise of the Court's discretion in deciding whether to grant an extension of time to commence a proceeding. There his Honour had before him an application to extend time to bring an application for review under s 5 of the ADJR Act. Relevantly, his Honour observed that it was a pre-condition to the exercise of the discretion to extend time that the applicant show an acceptable explanation for the delay. 43 In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Aala), which concerned an application to the High Court of Australia made under s 75(v) of the Constitution for writs of prohibition, certiorari and mandamus, Gaudron and Gummow JJ observed (at [53]) that the remedies provided in s 75(v) of the Constitution were attended by discretion and (at [55]-[56]) that delay is a factor which may count against an exercise of the discretion in favour of an applicant for relief. As the primary judge recognised (at [12]), that is equally so for an application for relief under s 39B of the Judiciary Act. Any suggestion by Mr Daley that the principles in Aala have no application to his case is rejected. 44 Mr Daley refers to Gallo v Dawson (1990) 93 ALR 479 (Gallo). That case concerned the enlargement of time within which to file a notice of appeal under O 60 r 6 of the High Court Rules 1952 (Cth). Here the primary judge was considering an extension of time under a different instrument. To the extent that Mr Daley suggests to the contrary, there was no error in the primary judge not referring to Gallo in determining that delay was a relevant factor to the exercise of his Honour's discretion and in finding that Mr Daley had provided no satisfactory explanation for his considerable delay of some 14 years from the Registration Decision and 11 years from the EOT Decision. 45 In any event, as we have already observed, the primary judge exercised a discretion in refusing the relief sought by Mr Daley. The relevant test governing an appeal against an exercise of a discretion is set out in House v The King (1936) 55 CLR 499 (House v The King) at 504-505 where Dixon, Evatt and McTiernan JJ said: … The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. … 46 In appeals against decisions involving discretionary judgment, "there is a strong presumption in favour of the correctness of the decision appealed from" and the "decision should be affirmed unless the appeal court is satisfied that it is clearly wrong": see Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [39] and the cases cited therein. 47 As is evident, in order to succeed in his appeal Mr Daley must show that the primary judge acted upon a wrong principle, permitted extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account a material consideration. It is only if Mr Daley succeeds in demonstrating an error of that nature that this Court can then exercise its own discretion in substitution for that of the primary judge. We do not think this is a case where it is not apparent how the primary judge reached his conclusion which led to the orders made. His Honour's reasons for making the orders that were made are set out in some detail and are clear. 48 Mr Daley's grounds of appeal do no more than re-agitate the grounds raised before the primary judge. Having considered those grounds and the reasons of the primary judge, we are not satisfied that Mr Daley has established any error on the part of the primary judge of the type identified in House v The King. The primary judge did not act upon a wrong principle, permit extraneous or irrelevant factors to guide or affect him, mistake the facts or fail to take a material consideration into account. 49 This Court does not need to be concerned with the merits of the arguments raised by Mr Daley before the primary judge. But, in any event, there is no error in the treatment by his Honour of each of those grounds. The primary judge identified his task. His Honour identified that delay was a relevant factor in the exercise of his discretion. His Honour considered Mr Daley's explanation for the delay and found that explanation to be unsatisfactory. His Honour then went on to consider the strength of Mr Daley's case, observing that there would need "to be a clear and strong" case for him to allow the proceedings to continue. In doing so, his Honour considered each of Mr Daley's contentions or submissions, including the ground raised by Mr Daley in his notice under s 78B of the Judiciary Act, and rejected them for the reasons summarised at [19]-[33] above. Having considered each of Mr Daley's contentions, the primary judge was not satisfied that any of them raised a sufficiently arguable issue such that his Honour would be persuaded to exercise his discretion in favour of granting the relief sought by Mr Daley. 50 We otherwise do not intend to revisit his Honour's findings in relation to the conclusions he reached on each of the contentions raised by Mr Daley which are repeated in the amended notice of appeal. Suffice to say we can discern no error in his Honour's approach. 51 Mr Daley drew the Court's attention to the decision in Child Support Registrar v Higgins [2016] FamCAFC 2. However, that decision does not lend any assistance to Mr Daley's appeal. There the Registrar sought leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) including orders restraining the Registrar from enforcing and collecting any child support arrears pending further order and requiring the Registrar to credit the father with payments for arrears already made by him. Relevantly, the child was born in Australia, after the relationship between the parents broke down the mother, a New Zealand national, returned to New Zealand, the father remained in Australia and the father's child support obligations derived from a New Zealand assessment. The appeal concerned the nature of the orders made by the Federal Circuit Court and the source of the court's powers in making those orders, namely either s 111C of the Registration and Collection Act or reg 36 of the Family Law Regulations 1984 (Cth). The Full Court of the Family Court, after examining the relevant legislation, found that the orders made were beyond power. 52 Finally, at the hearing of the appeal Mr Daley referred to a claim for injunctive relief by which, as we understand it, he seeks to stop collection of further payments by the Registrar. No claim for interlocutory or injunctive relief is included in the amended notice of appeal but we assume that Mr Daley refers to the interlocutory application filed on 1 June 2020 in which he sought "[a]n interim order/injunction retraining [sic] the [Registrar] from collecting further moneys" from him until determination of the appeal. On that assumption, we note that Mr Daley's interlocutory application has been heard and determined and on 17 June 2020 orders were made dismissing his interlocutory application: see Daley v Child Support Registrar [2020] FCA 862.

conclusion 53 It follows that the amended notice of appeal should be dismissed. Mr Daley accepted that costs should follow the event and, should he be unsuccessful, a costs order should be made in favour of the Registrar. 54 We will make orders accordingly. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Flick, Perry and Markovic.