Mercer v The Child Support Agency

Federal Court of Australia|2004-04-23|Before: Spender J

REASONS FOR JUDGMENT 1 This application seeks a resolution of a tension that is said to exist between s 79 of the Child Support (Registration and Collection) Act 1988 (Cth) ("the Collection Act") and s 143 of the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"). Unfortunately, the material on which this application falls to be decided is incomplete in significant respects. There have been reformulations of what relief the applicant seeks, questions have arisen as to the jurisdiction of the Federal Court to grant relief, and there are discretionary considerations about the grant of such relief. Subsequent to hearing the parties in Court, each party has filed, at the invitation of the Court, further written submissions. 2 The applicant, Denise Margaret Mercer, seeks relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (" the ADJR Act") and pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). She specifically seeks an order setting aside what is said to be the decision of the Registrar of the Child Support Agency ("the CSA"), which requires the sum of $6,606.47 to be repaid by the applicant to the Registrar of the CSA. She asserts that there was a decision to raise the debt pursuant to s 79 of the Collection Act, and that that decision is wrong in law and an improper application of the power contained within that section. Factual Background 3 The applicant and Stephen Paul Gresham ("Mr Gresham) married on 29 September 1984. On 9 December 1985, a male child ("T") was born. On 25 December 1987, a female child was born. On 7 June 1990, the applicant and Mr Gresham separated. They were divorced on 30 July 1991. 4 On 22 December 1990, the applicant made an "application for child support" (presumably this is a reference to an application for administrative assessment of child support, pursuant to Part IV of the Assessment Act) in respect of T, and the Child Support Registrar issued a child support assessment in relation to T. The payer was Mr Gresham, and the applicant was identified as the payee and mother of T. 5 The liability for, and collection of, child support commenced on 22 November 1990, and child support was paid until 24 December 1997, when Mr Gresham ceased employment. In total an amount of $6,606.47 was paid to the CSA by the payer and passed on to the applicant mother. 6 On 26 June 1998, the applicant obtained results from a parentage test which indicated that Mr Gresham was not the father of T. A second parentage test on 13 December 1999 confirmed that Mr Gresham was not the father of T. 7 On 19 June 2000, Mr Gresham filed an application pursuant to s 143 and s 107 of the Assessment Act in the Beenleigh Magistrates Court. He sought a declaration that the applicant was never entitled to the child support she received in relation to the child T, and also sought to recover from the mother child support paid in the period 1990 to 1999, and funds expended on school fees, camp fees and textbooks in the period 1990 to 1999. On 19 June 2000, a Magistrate ordered mediation between the parties, which was unsuccessful. 8 Subsection 107(1) of the Assessment Act provides that where the Registrar accepts a carer's application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may, subject to subs 107(1A), apply to a court having jurisdiction under the Assessment Act, for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person. 9 Pursuant to subs 107(4)(c) of the Assessment Act, if the court is satisfied that the person from whom the application sought payment was not a parent of the child, the court may grant the declaration. If the court grants such a declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar (subs 107(5)). 10 Section 143 of the Assessment Act provides for the recovery of child support where an amount is paid and no liability exists. The intention of subs 143(1) is to give to the payer the right to recover overpayments from the payee where a declaration as to liability has been made pursuant to s 107. 11 On 18 December 2000, Mr Gresham's application came before Stipendiary Magistrate Batts in the Beenleigh Magistrates Court. Her Worship declined to address the s 107 declaration application and instead proceeded to deal with the husband's s 143 application for recovery of the money paid to the applicant for the support of T. Batts SM ultimately declined to make an order pursuant to subs 143(3) of the Assessment Act, concluding that: '… [The respondent mother] had sought to have DNA testing done earlier in 1985 and the applicant refused. …; The applicant has always knownof the possibility that [T] was not his son …; Legally,… step parents can be and often are liable for the maintenance of their children, notwithstanding, the presence in their life of the natural parent …; [T] was a child of the relationship for nearly five years before separation and treated at all times by the applicant as his son, as well as subsequent to their relationship breakdown;… [The respondent mother] has no reasonable means by which to make any reimbursement to the applicant which would not have significant adverse consequences on her continued support of a household of three children, one of whom is a child of the marriage with the applicant, for whom on the very nominal child support continues to be paid.' 12 On 22 February 2001, Mr Gresham applied to the Family Court, Brisbane for an extension of time within which to appeal the decision of the Magistrate. The Family Court granted an extension of time on 9 March 2001. 13 On 9 March 2001, Mr Gresham filed a Form 43 notice of appeal to the Family Court from the decision of Batts SM, pursuant to O 32 r 22 of the Family Law Rules 1984. Mr Gresham appealed against the manner in which the learned Stipendiary Magistrate dealt with both his application for a declaration (s 107 of the Assessment Act) and his application for recovery of moneys (s 143 of the Assessment Act). 14 In the Family Court, an appeal from a court of summary jurisdiction is by way of a hearing de novo: subs 96(4)(a) Family Law Act 1975 (Cth). 15 On 6 April 2001, Mr Gresham's notice of appeal came before Bell J in the Family Court of Australia. His Honour declared, pursuant to subs 107(1) of the Assessment Act, that the child T born 9 December 1985 was not entitled to an administrative assessment of child support, because under subs 107(4) of the Assessment Act, the person from whom the mother sought payment was not a parent of the child. 16 After making a declaration that the applicant mother was not entitled to an administrative assessment, Bell J adjourned Mr Gresham's application for recovery of moneys under s 143 of the Assessment Act to 8 May 2001. 17 On 1 May 2001, the respondent sent a letter to the applicant, advising that the applicant had been overpaid $6,606.47 child support. The letter of 1 May 2001 commenced: 'We are writing to tell you that you have been overpaid $6606.47 child support' and under the heading "Repayment", the letter said: 'If you cannot afford to repay the whole amount, you can repay it in parts over time.' 18 On 4 May 2001, before Mr Gresham's appeal concerning s 143 of the Assessment Act was heard by the Family Court, the CSA paid $6,606.47 to Mr Gresham, representing moneys collected since 22 November 1990 in relation to the child T. This payment was made, notwithstanding that the Magistrates Court had ruled pursuant to subs 143(3) of the Assessment Act that it would not be 'just and equitable' for the applicant to repay to Mr Gresham any of the amount paid in respect of the child T. Section 75 of the Collection Act provides that money standing to the credit of the Reserve may be applied, amongst other things, in making payments under subs 76(1) to payees of registered maintenance liabilities and in repaying amounts paid into the Reserve that the Registrar was not entitled to have received under the Collection Act. 19 On 8 May 2001, the applicant appeared in the Family Court. The Family Court (Barry J) was advised by Mr Gresham that he had been repaid all child support by the CSA. The orders of Barry J on that day were: 'IT IS ORDERED BY CONSENT: 1. That the Appeal from the Order made at the Magistrates Court at Beenleigh on 18 December 2000 is dismissed.' 20 On 14 May 2001, the applicant wrote, objecting to the claimed overpayment made in the letter to her of 1 May 2001. In that letter the applicant referred to the order of the Magistrates Court of 18 December 2000, the order of the Family Court of 6 April 2001, and the order of the Family Court of 8 May 2001. The letter, importantly, says: 'I spoke to Kathie from your office on 10 May 2001 (ph: 30014239) who told me that the Court Order is irrelevant and that when Stephen was granted the S107 he was automatically granted the S143 ie: entitled to be refunded the money. This cannot be true, as the two Sections (S104 & S143) are separate and not as one. Also the Court Order does not reflect this.' 21 On 10 July 2001, the respondent advised the applicant that her objection had been disallowed. 22 The Regional Registrar, in relation to the applicant's objection, said in part: 'You have advised that the court issued orders under section 107 of the Child Support (Assessment) Act 1989 to have your son, [T], removed from the child support assessment as an eligible child. Mr Gresham's request for an order pursuant to section 143 of the Act, for the recovery of child support amounts paid, was not granted. You advise that his appeal to have section 143 apply also was dismissed and therefore the Child Support Agency (CSA) should not have refunded him.' 23 The Regional Registrar referred to s 76 of the Collection Act, and set out subs 79(1) of that Act. The Regional Registrar then said: 'In this case, the order under section 107 of the Child Support (Assessment) Act 1989 directs the CSA to vary the particulars of the Child Support Register, in relation to the liability previously raised for your son, [T]. As outlined above, Section 79 of the Child Support (Registration and Collection) Act 1988 states that if a subsequent variation occurs in relation to a child support liability, the amount is repayable by the Registrar to the payer of the liability and this then becomes repayable by the payee.

Therefore, although Mr Gresham's application under section 143 of the Child Support (Assessment) Act 1989 was dismissed, section 79 of the Child Support (Registration and Collection) Act 1988 allows the CSA to refund Mr Gresham any amounts he has paid as child support for [T]. Section 79 states this amount is then repayable by you to the CSA, as it is a debt owing to the Commonwealth.

Based on the above information, I am satisfied the decision to refund Mr Gresham child support he had paid for your son, [T], and for this amount to become an overpayment to you, was correct. Your objection has therefore been disallowed.

Please note, if you do not agree with this decision, you may lodge an appeal under the Administrative Decisions (Judicial Review) Act 1977.' 24 It is not correct to state, as the letter does, 'the order under section 107 of the Child Support (Assessment) Act 1989 directs the CSA to vary the particulars of the Child Support Register, in relation to the liability previously raised for your son, [T].' The effect of a declaration under subs 107(4) of the Assessment Act is as set out in subs 107(5), namely 'the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.' As explained later in these reasons, one consequence of this is that there was no registered maintenance liability in respect of T, because a condition for the raising of a registered maintenance liability is the acceptance of an application for administrative assessment of child support. Proceedings in the Federal Court 25 On 7 August 2001, the applicant filed in the Federal Court an application for an order of review of: '… the decision of the respondent that the amount of $6,606.47 is repayable by the applicant to the Child Support Agency and is a debt due by the applicant to the commonwealth pursuant to s 79 of the Child Support Registration and Collection Act 1988.' 26 Shortly before the hearing of this matter on 27 February 2002, the respondent lodged written submissions which, amongst other things, asserted that the respondent had "not made a decision". The submission on behalf of the respondent was that the order of the Family Court pursuant to s 107 of the Assessment Act determined that the applicant was not entitled to have been paid child support in respect of T and that, as a consequence, no decision was required to be made by the respondent that there was a debt due and recoverable from the applicant. The respondent submitted that that consequence flowed by operation of the statute, and there was therefore no "decision". The respondent relied on the observations of Fox J in Pearce v Button (1986) 65 ALR 83 at 85 and my observations at 105, and the observations of O'Loughlin J (with whom French J and I agreed) in Whim Creek Consolidated NL v Colgan (1991) 103 ALR 204 at 210-11. 27 Further it was submitted that any decision by the respondent to demand payment of a sum of money which the CSA claims is payable pursuant to the statute is not a decision made "under an enactment". The respondent relied on the observations of Black CJ in Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 273 and my observations at 278-9. To similar effect, and supporting the submission made by the respondent, are the observations by Cooper J in Century Yuasa Batteries Pty Ltd v Federal Commissioner of Taxation (1997) 143 ALR 477, where his Honour concluded that a decision to seek to recover an amount equal to the withholding tax and penalty for late payment and a demand for payment was not a "substantive" determination in the sense explained by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. The submission was then made that the Court did not have jurisdiction to entertain the application, it being noted that parties to litigation cannot enliven a jurisdiction which the Court does not have: Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1980-1981) 148 CLR 150 at 163. 28 No doubt because of these submissions, the applicant sought leave to make an amended application. The application for leave was not opposed by the respondent, and was granted. 29 As so amended, the application is an application to review: '1. The decision of the respondent on or about 4 May 2001 to repay the sum of $6,606.47 to Stephen Paul Gresham who was previously the liable parent pursuant to a child support assessment which assessment was the subject of a declaration by the Family Court at Brisbane on 6 April 2001 pursuant to section 107 of the Child Support (Assessment) Act 1988. 2. The applicant also seeks orders declaring the rights between the parties in respect of a matter to which the decision relates, pursuant to section 16 of the Judicial Review (Administrative Decisions) Act and/or pursuant to section 22 of the Federal Court Act.' 30 The amended application claimed that the applicant was aggrieved by the decision because the amount was not repayable by the Registrar of the CSA to Mr Gresham (as payer of the liability), and as the amount was not repayable, any payment should not now be the liability of the applicant. 31 It was conceded by Mr Howell, who appeared for the respondent, that the applicant had standing to challenge the decision the subject of the amended application. 32 The grounds of the amended application are as follows: '1. On 18 December 2000, an order was made by the Magistrates Court at Beenleigh dismissing an application by Stephen Gresham for reimbursement of child support paid for the years from 1991 to 1999. 2. Notwithstanding that order, which has never been set aside, the Child Support Agency paid to Stephen Gresham a sum of $6,609.00 which is child support paid by Gresham for the years between 1991 and 1999. 3. [When] the Child Support Agency made the payment [it] ought to have known of the decision and [ought to have known] that Gresham had no entitlement to have the monies repaid. 4. There should not now be a liability by the applicant to the Child Support Agency. 5. That the respondent failed to take into account that it had a discretion whether or not to refund the said monies pursuant to section 75(c) of the Child Support (Registration and Collection) Act 1988 (The Collection Act). 6. The respondent failed to take into account the fact that a Magistrate had exercised her discretion pursuant to section 143 of the Child Support (Assessment) Act 1989 (the Assessment Act) on 18 December 2000 to decline to order repayment of the said monies of $6,606.47 to Mr Gresham on the grounds that such repayment was not just and equitable and such order and finding remained in force; 7. That the respondent acted as if it had no discretion pursuant to a mistake of law as to the effect of section 79 of the Collection Act; 8. In the light of the order dated 6 April 2001, the applicant is deemed not to be and is not a payee of the registered maintenance liability; 9. Alternatively, the applicant was neither 'not entitled to be paid the amount' in that she was entitled to be paid at the time of the payment, nor, is the money 'repayable to the applicant' because of the changes in the variation to particulars of the Child Support Register which have occurred; 10. Further, and in the alternative, the amount is not repayable to the payer of the liability because such requirement only occurs upon a valid exercise of the discretion to repay pursuant to s.75 of the Collection Act.' 33 The relief sought by the applicant is: '1. The decision of the respondent be set aside. 2. [A declaration that] the applicant is not indebted to the Commonwealth in the said sum of $6,606.47 or any other sum pursuant to section 79 of the Registration and Collection Act; 3. [A declaration that] section 79 of the Registration and Collection Act does not apply to the monies received by the applicant from the respondent pursuant to the assessment of the child support that existed prior to the order of Judge Bell of the Family Court dated 6 April 2001.'

Legislative Framework The Assessment Act 34 Section 5 of the Assessment Act relevantly provides: 'court exercising jurisdiction under this Act does not include a court exercising jurisdiction in proceedings under paragraph 79(a). court having jurisdiction under this Act does not include a court that has jurisdiction under this Act only in relation to the recovery of amounts of child support.' 35 Section 24 relevantly provides: "Application may be made to the Registrar for administrative assessment of child support for a child only if: (a) the child is: (i) an eligible child; and (ii) under 18 years of age; and (iii) not a member of a couple; and (b) either or both of the following subparagraphs applies or apply in relation to the child: (i) the child is present in Australia on the day on which the application is made; (ii) the child is an Australian citizen, or ordinarily resident in Australia, on that day." 36 Subsection 25(2) relevantly provides: 'A person may apply to the Registrar under this section for administrative assessment of child support for a child if: (a) the person is an eligible carer of the child; and (b) the person is seeking payment of child support for the child from a person who is: (i) a parent of the child; and (ii) a resident of Australia on the day the application is made; and (c) the person is not living with the person from whom payment of child support is sought as the partner of that person on a genuine domestic basis (whether or not legally married to that person); …' 37 Section 31 provides that the liability to pay child support arises on acceptance of an application for administrative assessment of child support for a child. 38 Section 79 relevantly provides: 'Recovery of amounts of child support An amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer entitled to child support, and may be sued for and recovered in: (a) a court having jurisdiction for the recovery of debts up to the amount of the child support; or (b) a court having jurisdiction under this Act.' 39 Part VII of the Assessment Act provides for the jurisdiction of courts, and s 99 relevantly provides: '(1) Jurisdiction is conferred on the Family Court and the Federal Magistrates Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act. (2) Subject to subsections (5) and (7), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, in relation to matters arising under this Act.' 40 Section 107 relevantly provides: '(1) Where the Registrar accepts a carer application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may, subject to subsection (1A), apply to a court having jurisdiction under this Act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person. (1A) A person may not apply to a court under subsection (1) unless: (a) the person has objected under section 98X to the Registrar's acceptance of the application for administrative assessment; and (b) the Registrar has either disallowed the objection or has allowed it only in part. … (3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are the person from whom the application sought payment of child support and the applicant for administrative assessment of child support. (4) If the court is satisfied: (a) that the child was not, under section 24, a child in relation to whom the application for administrative assessment of child support was entitled to be made; or (b) that the applicant was not, under section 25, a person entitled to make the application for the child; or (c) that the person from whom the application sought payment was not: (i) a parent of the child; or (ii) a resident of Australia; the court may grant the declaration. (5) If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.' It is to be noted that neither party raised any question as to whether s 107(1A) of the Assessment Act had any relevance in these proceedings. 41 Section 143 is directly relevant to this proceeding: '(1) Where: (a) an amount of child support is paid by a person to another person; and (b) the person is not liable, or subsequently becomes not liable, to pay the amount to the other person; the amount may be recovered in a court having jurisdiction under this Act. … (3) In a proceeding in a court under this section, the court may make such orders as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned. (4) An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.' The Collection Act 42 Under s 4 the Collection Act: 'enforceable maintenance liability means a registered maintenance liability that is enforceable under this Act.' 43 Section 24 relevantly provides: '(1) Where the Registrar receives under subsection 23(2) a notice from the payee of a registrable maintenance liability, the Registrar shall, within 28 days after receipt of the notice, register the liability under this Act by entering particulars of the liability in the Child Support Register.' 44 Section 24A relevantly provides: '(1) Subject to subsection (2), where the Registrar makes a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately register the liability under this Act by entering particulars of the liability in the Child Support Register.' 45 Section 26 provides: '(1) The entry in the Child Support Register in relation to a registered maintenance liability must include particulars from the child support assessment, court order or maintenance agreement under which the liability arose. Those particulars are as follows: (a) the name of the payer; (b) the name of the payee; (c) particulars of the child support assessment, court order or maintenance agreement under which the liability arose and each assessment, court order and maintenance agreement varying or otherwise affecting the first-mentioned assessment, order or agreement, being particulars that are, in the opinion of the Registrar, sufficient to adequately identify the basis of the liability; (d) the name and date of birth of each child to whose maintenance the entry relates; (e) the name of any other person to whose maintenance the entry relates; (f) the periodic amount, or the aggregate of the periodic amounts that are: (i) stipulated in the child support assessment, court order or maintenance agreement under which the liability arose; and (ii) payable by the payer in relation to the entry; (g) if the entry relates to the maintenance of 2 or more persons - the periodic amount attributable to each of them; (h) the period specified in the child support assessment, court order or maintenance agreement as the period at which amounts are payable under the liability; (i) particulars of any terms and conditions of the court order or agreement that the Registrar considers necessary or desirable to include in the entry to ensure that all the terms and conditions of the order or agreement relating to the liability are fully given effect under this Act.' 46 Section 30 relevantly provides: '(1) If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register. (2) In particular, the amounts are payable by the payer at the payment rate entered in the Register under paragraph 26(2)(d) in respect of the periods entered in the Register under paragraphs 26(2)(a) and (b). Note: Section 28B requires the Registrar to convert the periodic amount payable in respect of a registrable maintenance liability to a rate of payment depending upon the payment period determined in respect of the liability. (3) If a registrable maintenance liability is registered under this Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability.' 47 Section 75 relevantly provides: 'Money standing to the credit of the Reserve may be applied: (a) in making payments under subsection 76(1) to payees of registered maintenance liabilities; … (c) in repaying amounts paid into the Reserve that the Registrar was not entitled to have received under this Act; … 48 Section 76 relevantly provides: '(1) Subject to subsection (2) of this section, subsection 79(2) and section 79A, every payee of a registered maintenance liability is entitled to be paid, on or before the first Wednesday following the end of each month (in this section called the current month), an amount equal to the aggregate of: (a) amounts deducted by an employer under Part IV in relation to the liability during the month (in this section called the previous month) preceding the current month; (b) amounts received by the Registrar (otherwise than under Part IV) in payment of a child support debt in relation to the liability during the period (in this section called the payment period) beginning on the day following the closing day of the previous month and ending on the closing day of the current month; and (c) to the extent that they have not previously been paid to the payee, amounts that were: (i) deducted by an employer under Part IV in relation to the liability before the previous month; or (ii) received by the Registrar (otherwise than under Part IV) in payment of a child support debt in relation to the liability before the payment period; but excluding (in the case of each of the amounts mentioned in paragraphs (a), (b) and (c)) any amount that was not due and payable by the payer on the seventh day of the current month. (2) Subject to the regulations, where the amount that a person is, but for this subsection, entitled to be paid at any time under subsection (1) in relation to a registered maintenance liability is less than the amount prescribed for the purposes of this subsection, the person is not entitled to be paid the amount at that time.' 49 Section 79 provides: '(1) If: (a) the payee of a registered maintenance liability is: (i) paid an amount under section 76; or (ii) because of section 71AA, taken to have been paid an amount under section 76; and (b) either of the following situations apply: (i) the payee was not entitled to be paid the amount; or (ii) the amount is, because of a subsequent variation to particulars of the entry in the Child Support Register in relation to the liability, repayable by the Registrar to the payer of the liability; the amount is repayable by the payee to the Registrar and is a debt due by the payee to the Commonwealth.' 50 Section 113 relevantly provides: '(1) Debts due to the Commonwealth under this Act: (a) are payable to the Registrar in the manner and at the place prescribed; and (b) may be sued for and recovered by the Registrar or a Deputy Registrar suing in his or her official name; and (c) may be recovered in: (i) a court having jurisdiction for the recovery of debts up to the amount of the debt; or (ii) a court having jurisdiction under this Act. (2) The Registrar may take such steps as the Registrar considers appropriate to keep the payee of a registered maintenance liability informed of action taken to recover debts due to the Commonwealth under this Act in relation to the liability.' 51 While it was not referred to in argument, the CSA produces an on-line guide to policy and practice within the Agency. In the material that accompanies the guide on-line, there appears: 'The Guide sets out CSA's policy and view of the child support scheme and its administration. It is organised into parts, chapters and topics. … The Guide is produced by CSA's Legal & Quality Assurance section. CSA staff are expected to follow The Guide except where it would result in an anomaly …' 52 In Chapter 5.5, dealing with "Payments to payees", the following appears: 'Overpayments Context Overpayments of child support occur when a payee has been paid child support to which they are not entitled, usually because CSA has made a retrospective variation to a child support assessment, or where a court makes an order or declaration with retrospective effect. Legislative references Sections 30 and 79 Child Support (Registration and Collection) Act 1988 Sections 107 and 143 Child Support (Assessment) Act 1989 Sections 44 and 47 Financial Management and Accountability Act 1997 Section 1228(2B) Social Security Act 1991 Explanation Where CSA makes a retrospective amendment CSA to a child support assessment, or gives effect to a court order or declaration with retrospective effect, this can result in a child support overpayment. Although the Assessment Act minimises the circumstances in which overpayments occur (for example, assessments are only amended prospectively when a parent estimates their income, or when a parent notifies CSA of a change to the level of care of a child) overpayments do occur in the ordinary course of child support cases. It is important for CSA to deal with overpayments in a way that is consistent with the objects of both child support Acts and that is fair to both parents. The Financial Management and Accountability Act 1997 requires CSA to deal with Commonwealth revenue in an efficient, effective and ethical manner (section 44). It also requires CSA to pursue all relevant debts owed to the Commonwealth unless the debts are not legally recoverable or CSA considers that it would not be economical to pursue recovery of them (section 47). There are 2 kinds of child support overpayments: · overpayments where there is no registered maintenance liability (which are not debts the payee owes to the Commonwealth), and · overpayments where there is a registered maintenance liability (which can be debts the payee owes to the Commonwealth) Overpayments where there is no registered maintenance liability CSA cannot recover overpayments that occur when there is no registered maintenance liability because they are not debts due to the Commonwealth under section 79. A payer can take action to recover these overpayments from the payee in a court with family law jurisdiction. If child support was payable under a child support assessment, the payer can make their application to the court under section 143 of that Act. If the registrable maintenance liability arose under a court order or court-registered agreement the person may be able to take recovery action against the payee in the court that made the order or registered the agreement. Example A court makes a declaration under section 107 of the Assessment Act that F is not entitled to a child support assessment payable by M for child C. The effect of the court's declaration is that CSA is taken never to have made a child support assessment for C. As C was the only child for whom F and M had a child support assessment, F is taken never to have been the payee of a registered maintenance liability. The child support that CSA collected from M and paid to F is not a debt due by F to the Commonwealth under section 79. Where an overpayment occurs when there is no registered liability CSA will advise a payer that section 143 of the Assessment Act specifically provides for them to make an application to a court for recovery of child support paid where liability no longer exists. The payer must name the payee as the respondent to their application, as the child support paid to CSA is taken to have been paid to the payee for the purposes of section 143 (section 143(4)). The court may make orders that are just and equitable in the circumstances to give effect to the rights of the parties and the child(ren). The court cannot make an order requiring CSA to repay the overpaid amount to the payer (Child Support Registrar and Z and T (2002) FamCa 182).' The following paragraph, in my opinion, erroneously misstates the position. That paragraph reads: 'However, the situation is different if the court makes a declaration under section 107 that does not cover all the children in a child support assessment. A payee is still a payee of a registered maintenance liability if the payer is still liable to pay child support to them for other children who are children of their relationship. The overpaid amounts were paid to the payee of a registered maintenance liability even though they also covered child(ren) that are not included in the assessment. The overpayment is a debt owed by the payee to the Commonwealth under section 79 and is recoverable.' 53 It is anomalous (and in my opinion not correct) that the position as to whether the payments are debts owed by the payee to the Commonwealth depends on whether there is a registered maintenance liability which covers children that are not included in the assessment. In my opinion, a payee is not liable pursuant to s 79 of the Collection Act where the payer remains liable in respect of a biological child other than the child in respect of whom a declaration under s 107 of the Assessment Act had been made. 54 It seems extraordinary to me that the CSA paid $6,606.47 to Mr Gresham on 4 May 2001, in circumstances where it was either ignorant of the decision of the Magistrates Court of 18 December 2000, or in spite of knowledge of that decision. I note in this regard a commentary published in Issue 33 of "Child Support Update" (March 2001) concerning the Policy Guideline 4/2000 as follows: 'Policy Guideline 4/2000 explains that CSA will no longer refund amounts collected as child support from liable parents who subsequently obtain a declaration under section 107 of the Child Support (Assessment) Act 1989. A court can make a section 107 declaration where it finds that a carer parent was not entitled to an administrative assessment of child support payable by the liable parent for a particular child. Applications under section 107 are usually made by liable parents who believe that they are not the parent of the child for whom they pay child support. The effect of a section 107 declaration is that CSA is taken never to have made an administrative assessment of child support for that child. CSA will remove the details of the administrative assessment from the Child Support Register following a section 107 declaration. CSA will refund to the payer any child support payments collected and held in the suspense account pending the court's determination of his or her application for a section 107 declaration. CSA will not, however, refund any amounts that had already been disbursed to the payee as child support before CSA was made aware of the payer's application to the court under section 107. A former payer who wishes to recover the amount of child support that he or she has paid to CSA prior to a section 107 declaration can seek to recover this directly from the payee. Subsection 143(4) of the Child Support (Assessment) Act 1989 provides that where a child support assessment is registered for collection by CSA, amounts paid to the Registrar are taken to have been paid to the payee for the purposes of section 143. As noted earlier, section 143 of the Child Support (Assessment) Act 1989 enables a liable parent to make an application to a court for recovery of any child support overpaid under an administrative assessment. The court will consider what is just and equitable in the particular case when making orders for enforcement.' (Emphasis added) 55 As the sections earlier set out demonstrate, the administrative assessment of child support is conditional, amongst other things, on the applicant being an eligible carer of the child, and the applicant seeking payment of child support from a person who is a parent of the child. The effect of a declaration under subs 107(1) of the Assessment Act is that, by subs 107(5), the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar. If there is no acceptance of an application for administrative assessment of child support, there is no liability to pay child support in respect of that application, because by s 31 of the Assessment Act, liability to pay child support arises only on acceptance of an application for administrative assessment of child support for a child. 56 Division 2 of Part III of the Collection Act provides for the registration of the particulars of liability of, inter alia, a child support assessment in the Child Support Register. In the example given in the policy set out above, under the heading 'Overpayments where there is no registered maintenance liability', the guide says: 'The effect of the court's declaration is that CSA is taken never to have made a child support assessment for C.' 57 In my judgment, it does not matter whether C was the only child for whom F and M had a child support assessment. The fact is that F is, by subs 107(5) of the Assessment Act, taken never to have been the payee of a registered maintenance liability in respect of C. The child support that CSA collected from M and paid to F is not a debt due by F to the Commonwealth under s 79 of the Collection Act, and this is so whether there may be other registered maintenance liabilities of M to F in respect of children other than C. 58 In my judgment s 79 of the Collection Act has no application in the circumstances of this case, where there is no registered maintenance liability for the child T. 59 In Child Support Registrar v Z (2002) 167 FLR 190 ("the Z case"), the Full Court of the Family Court (Lindenmayer, Finn and Coleman JJ) was concerned with a question somewhat different from that in the present proceedings, namely, whether an amount may be recovered pursuant to s 143 of the Assessment Act from the Child Support Registrar, or whether s 143 is limited in its scope to recovery of amounts from the mother to whom money collected by the Registrar was eventually paid. In the present case, the question is whether moneys that the Child Support Registrar has paid to a payer in respect of a child of whom he is not the parent, is a debt due from the payee, pursuant to s 79 of the Collection Act, the payee having previously defended a s 143 application successfully 60 It cannot be doubted that Mr Gresham was entitled to bring an application pursuant to s 143 of the Assessment Act. He did so, and was unsuccessful. His appeal from that decision by Batts SM was dismissed with his consent. 61 The Z case involved child support that had been paid by the respondent payer for the child L. After the birth of L, the respondent father signed the birth certificate as the father. Subsequently an application by the mother for child support to be paid by the respondent was accepted by the Child Support Registrar who proceeded to collect amounts of child support from the respondent payer. DNA tests later established that the respondent payer was not the father of the child L. On 22 December 1998 the respondent and mother provided statutory declarations to the Child Support Registrar affirming that the respondent was not the child's father. Despite the father's protest the CSA continued to collect child support from him. 62 In November 2000 the respondent brought proceedings in the Family Court for a declaration under s 107 of the Assessment Act that the mother was not entitled to administrative assessment of child support for L payable by him, and to recover moneys collected from him as child support, against the mother and the Child Support Registrar. On 6 March 2001, Kay J made the declaration sought by the respondent and on 9 April 2001 he made an order pursuant to s 143 of the Assessment Act that the Registrar of the CSA and the mother repay to the respondent the $4,290.32 paid by him in child support after 22 December 1998. From the latter order the Registrar of the CSA appealed. The mother did not appeal. 63 On appeal it was held that there is nothing in s 143 of the Assessment Act that specifically, or by necessary implication, provides for the recovery of moneys paid in the circumstances predicated by s 143, from the Registrar of the CSA. 64 It was further held by the Full Court of the Family Court in the Z case that for the purpose of its collection and enforcement functions under the Collection Act, the Child Support Registrar may essentially be perceived to be the agent of a disclosed principal, ie the payee parent (at 203): '… we would have thought that, prima facie, the use of the word "recovered" in subs (1), in the context of reference to "an amount paid by a person to another person", would signify recovery by the person who made the payment from the other person who was the recipient of the payment. Furthermore, if it be correct, as we perceive it to be, to regard the appellant, in the collection and enforcement aspects of its functions delineated by the Child Support (Registration and Collection) Act, as, essentially, the agent for a disclosed principal (namely the person entitled to be paid child support), then the conclusion stated in the preceding sentence would seem, by analogy, to be consistent with general principles of the law of agency. Under those principles, where an agent contracts on behalf of a disclosed principal, there is a presumption (rebuttable in some circumstances by evidence of a contrary intention) that the principal alone, not the agent, is liable under the contract, unless the contract expressly provides otherwise: Railway Commissioners (NSW) v Orton and Knight (1922) 30 CLR 422 at 425; Halsbury's Laws of Australia (at [15-320]); Austrac Rail Pty Ltd v Hunter Premium Funding Ltd [2001] NSWSC 654. In such a case, any payment to the agent pursuant to the contract would be regarded as a payment to the principal and, in the event of a total failure of consideration, or recision for fundamental breach after payment (circumstances somewhat analogous to the effect of the declaration under s 107 of the Child Support (Assessment) Act here) action for recovery of the amount paid would lie against the principal, not the agent. There is certainly nothing in s 143 which specifically, or by necessary implication, provides for recovery from the appellant of moneys paid, in the circumstances predicated by the section. …' 65 The Full Court of the Family Court in the Z case also considered s 30 of the Collection Act. That section provides that if a registrable maintenance liability is registered under the Collection Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises, are considered debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register (subs 30(1)). The Full Court of the Family Court noted that this is contradictory to the agency argument adopted in relation to s 143 of the Assessment Act. It was said at 203-204: 'However, the effect of s 30 of the Child Support (Registration and Collection) Act would seem to be to work a statutory assignment of debt between the person entitled to receive payments of child support under a registered registrable maintenance liability, and the Commonwealth, so that the latter becomes the creditor of the person liable to make the payments in lieu of the former. Absent s 143(4) of the Child Support (Assessment) Act, in a case where payment was made by the liable parent to the Commonwealth, pursuant to s 30 of the Child Support (Registration and Collection) Act, the Commonwealth would be the recipient of the payment and therefore the "person" from whom such a payment could be "recovered" under s 143(1), in the circumstances provided for in that subsection.' 66 Concerning s 79 of the Collection Act, the Full Court of the Family Court concluded that although it was possible to infer from subs 79(1)(b)(ii) that the legislature intended that the Registrar repay amounts overpaid by the payer, the legislature failed to invest the Family Court with jurisdiction to order the Registrar to make such repayments. Their Honours state, at 208: 'Provision for the recovery, by the registrar, on behalf of the Commonwealth, from the payees of retrospectively invalidated child support liabilities, of amounts paid to them before the invalidation, is made by s 79(1)(b)(ii) of the Child Support (Registration and Collection) Act.' 67 In my respectful opinion, this conclusion, which was not necessary for the result in that case, ignores the effect of subs 107(5) of the Assessment Act. 68 The court asked itself at 209: 'This question may perhaps legitimately be asked: if an obligation in the registrar to repay moneys to the payer liable under a registered maintenance liability (an obligation apparently recognised in s 79(1)(b)(ii) of the Child Support (Registration and Collection) Act) is not created by s 75(c) of the Act, where is such an obligation created by this legislation? But more relevant for present purposes, is the question: where is any power conferred on the court to order such a repayment? The first is not an easy question to answer. The wording of s 79(1)(b)(ii) itself suggests that such an obligation can arise only "because of a subsequent variation to particulars of the entry in the Child Support Register in relation to the liability" (emphasis added). Counsel for the appellant drew our attention to a number of sections in the Child Support (Registration and Collection) Act which impose obligations on the registrar, or empower the registrar, to vary particulars of entries in the Child Support Register: see ss 36, 37, 38, 38A, 38(b), 39(6), 39A(7), 39B(8), 40, 41, 42, 42A, 42B, 44 and 65B. However, none of those sections provides that, if upon or as a result of a variation of the particulars of an entry in the register, a payer liable under a registered maintenance liability has paid to the registrar moneys which that payer was not or is not, in accordance with those varied particulars, liable to pay, then those moneys shall be repaid to that payer by the registrar. We suppose that it is possible to infer, from s 79(1)(b)(ii) that it was the intention of the legislature that in such circumstances the amount overpaid by the payer should be repaid by the registrar. However, if that be the case, then the legislature failed to invest this Court with jurisdiction to order the registrar to make such repayment. Nothing in the Child Support (Registration and Collection) Act, invests this Court with such jurisdiction and, for the reasons we have already given, s 143 of the Child Support (Assessment) Act, properly construed, does not do so either. Accordingly, we conclude that neither s 79(1)(b)(ii) nor s 75(c) of the Child Support (Registration and Collection) Act imposes an obligation upon the registrar, enforceable by an order of this Court, to repay to the payer of a previously registered registrable maintenance liability, moneys paid in respect of that liability, at least when those moneys have not first been recovered from the payee, pursuant to s 79(1)(b)(ii).' 69 Their Honours acknowledged that the position is not free from doubt, saying at 211: 'We acknowledge that the position, so far as the liability of the appellant to repay moneys collected in circumstances such as exist in this case, is far from clear, and the legislation, in this respect, less than satisfactory. It is an area in which there is clearly room for a difference of opinion, and we think it would be highly desirable for the legislature to clear up the uncertainty by making appropriate amendments to the legislation. However, on the legislation as it presently stands, we are simply not satisfied that that there is any jurisdiction in this Court to order the Commonwealth (or the appellant, if, despite the absence of any specific provision to the effect that the appellant stands in the shoes of the Commonwealth for all purposes under the legislation, the appellant may properly be taken to represent the Commonwealth in this context) to repay to the payer moneys paid under a registered maintenance liability which is subsequently invalidated by a declaration under s 107 of the Child Support (Assessment) Act.' 70 In the light of my reasons earlier set out, I turn to the question of the relief, if any, which the Court should grant. 71 The applicant in this matter seeks relief pursuant to the ADJR Act and pursuant to s 39B of the Judiciary Act. 72 Jurisdiction with respect to judicial review was conferred on the Federal Court by the ADJR Act and by s 39B of the Judiciary Act. There is no jurisdiction conferred on the Family Court under those Acts. The Federal Magistrates Service has concurrent jurisdiction with the Federal Court under the ADJR Act. The Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Bill 1999 states at 5 that:

'The amendments made by these items give the Federal Magistrates Court concurrent jurisdiction with the Federal Court under this Act, [Administrative Decisions (Judicial Review) Act 1977 (Cth)] except for decisions made under portfolio legislation of the Minister for Immigration and Ethnic Affairs, where the Federal Court will retain exclusive jurisdiction under this Act.

The amendments made by these items give the Federal Magistrates Court the same powers as the Federal Court in dealing with applications made under this Act.'

73 The Family Court and the Federal Magistrates Court are invested with Federal jurisdiction in relation to matters under subs 104(1) of the Collection Act and s 99 of the Assessment Act. There is no provision in the Collection Act that expressly ousts the jurisdiction of the Federal Court under the ADJR Act or the Judiciary Act. 74 Section 19 of the ADJR Act provides for the making of regulations declaring that a class or classes of decisions are not subject to judicial review under the ADJR Act by the Federal Court or the Federal Magistrates Court. Further, the definition in subs 3(1) of the "decision" to which the ADJR Act applies, whilst speaking in general terms of decisions of an administrative character made under an enactment, expressly excludes a decision included in any of the classes of decisions set out in Schedule 1 of the ADJR Act. 75 Decisions under the Collection Act do not fall within any of the various classes of decision for which specific exclusion has been made in or under Schedule 1 of the ADJR Act. The ADJR Act does not otherwise exclude decisions under the Collection Act from its processes of review. 76 It does, however, expressly exclude the operation of the ADJR Act with respect to decisions made by a Child Support Registrar under Part VIA of the Assessment Act (see Schedule 1 of the ADJR Act). It follows, in my view, that the Parliament has expressly chosen not to exclude the operation of the ADJR Act with respect to the Collection Act. 77 On whether the vesting of jurisdiction in the Family Court and the Federal Magistrates Court by s 104 of the Collection Act impliedly displaces the jurisdiction of the Federal Court under the ADJR Act or under s 39B of the Judiciary Act, the position is that a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably: Magrath v Goldsbrough, Mort and Company Limited (1931-1932) 47 CLR 121 at 134; Shergold v Tanner (2002) 209 CLR 126. Had the Parliament wanted to oust the jurisdiction of the Federal Court for judicial review pursuant to the ADJR Act, it could have included the Collection Act in Schedule 1 of the ADJR Act. 78 Reference should be made to the basic rule of construction referred to by Gaudron J in Saraswati v The Queen (1990-1991) 172 CLR 1 at 17: 'It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v. Attorney-General (Vict.) (1961) 106 CLR 268, at p.276. … ' 79 Judicial review under the ADJR Act by the Federal Court is not concerned with the merits of the decision or action under review. The question for the Court is whether the decision or action is lawful. There is nothing to suggest that the two pieces of legislation cannot stand together. 80 There may be doubt about the jurisdiction of the Family Court to hear the application. As noted above, the Full Court of the Family Court in the Z case said at 209: 'We suppose that it is possible to infer, from s 79(1)(b)(ii) that it was the intention of the legislature that in such circumstances the amount overpaid by the payer should be repaid by the registrar. However, if that be the case, then the legislature failed to invest this Court with jurisdiction to order the registrar to make such repayment. Nothing in the Child Support (Registration and Collection) Act, invests this Court with such jurisdiction and, for the reasons we have already given, s 143 of the Child Support (Assessment) Act, properly construed, does not do so either.' 81 I am satisfied that the Federal Court has the jurisdiction to hear the application. I am also satisfied that the operation of s 39B of the Judiciary Act is not limited or constrained by the provisions of s 104 of the Collection Act. 82 In the view I take of the matter, as indicated above, s 79 of the Collection Act has no application in the circumstances of this case, where there is no registered maintenance liability for the child T. The judgment in the Full Court of the Family Court in the Z case establishes that, at the least, there was no obligation upon the Registrar to pay any moneys to Mr Gresham. Whether there was any proper authority for the Registrar to make that payment is a matter which is unnecessary for me to decide. In my judgment, the fact that the CSA paid on 4 May 2001 $6,606.47 to Mr Gresham does not have the effect contended for by the respondent, namely that that amount represents an overpayment to the applicant and is recoverable as a debt due to the Commonwealth. 83 It was submitted on behalf of the applicant that the Court should set aside the decision to pay the money to Mr Gresham. I decline to make any such order, particularly given the circumstance that Mr Gresham has not been heard in relation to this matter, and neither party contended, when the question was raised by me, that he should be made a party to these proceedings. 84 As a corollary to that consideration, if, as the respondent contended, the effect of paying the money to Mr Gresham was to generate a debt payable by the applicant to the Commonwealth, as a matter of natural justice she had a right to be heard in respect of the decision to pay Mr Gresham that money. 85 The position is that as at 4 May 2001, the applicant had been relieved of payment of any moneys to Mr Gresham by order of the Magistrates Court at Beenleigh, and at the time that the payment was made by the CSA to Mr Gresham on 4 May 2001, Mr Gresham was not lawfully entitled to recover any moneys from the applicant. That, it seems to me, is a highly relevant factor that should have been taken into account in respect of the decision to pay moneys to Mr Gresham on 4 May 2001. 86 I decline to make any order that the Court should set aside the decision to pay money to Mr Gresham, primarily for the reason that he is a person who would be affected by any such order, and he has not been heard in relation to that matter. 87 In my view, it is sufficient for the purposes of the application if the Court declares that the applicant is under no legal obligation to pay any money to the CSA or the Commonwealth, and there is no debt owing by the applicant to the Commonwealth. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Solicitor for the Applicant: Legal Aid Queensland

Solicitor for the Respondent: Australian Government Solicitor

Administrative Decision (Judicial Review) Act 1977(Cth)

Part III Child Support (Assessment) Act 1989(Cth)ss 5, 24, 25, 31, 79, 99, 107, 143, Parts

VIII Administrative Decisions (Judicial Review) Act 1977(Cth)ss 3, 19, Schedule

Decisions (Judicial Review) Act 1977(Cth)

Child Support (Registration and Collection) Act 1988(Cth)ss 4, 24, 24A, 26, 30, 75, 76, 79, 113, Division

Family Law Act 1975(Cth)s 96(4)(a)

At a glance

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Judgment (10 paragraphs)

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Legislation Cited (9)

Cases Cited (10)