Whittaker v Child Support Registrar

REASONS FOR JUDGMENT THE COURT 1 The appellant sought an order of certiorari quashing the decision of the Child Support Registrar to accept an application for assessment of child support. The appellant was potentially liable with respect to that assessment. Section 34 of the Child Support (Assessment) Act 1989 (Cth) ('the Act') provides for the giving of notice: 'Notice to be given to person from who child support sought (1) If the Registrar accepts an application for administrative assessment of child support for a child, the Registrar must immediately notify the applicant, and the person from whom the application sought payment of child support or the person to whom the application sought to pay child support (as the case requires), in writing. (2) The notice must include a statement to the effect: (a) that the person from whom, or to whom, the application sought payment of child support may, subject to this Act, object to the decision; and (b) in the case of a carer application - that if the person from whom the application sought payment of child support is aggrieved by the decision on the objection, he or she may apply, subject to this Act and the Family Law Act 1975, to a court having jurisdiction under this Act for a declaration under section 107 and the applicant was not entitled to administrative assessment of child support for the child payable by the person. (3) A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.' 2 Liability to pay child support begins on the day a complying application is made to the Registrar (see ss 30(1) and 31(1) of the Act). In the event that the Registrar accepts the application, the liable parent has a right to apply to a court with respect to the decision to accept the application and with respect to the assessment itself (see ss 107, 110 and 116 of the Act). 3 The appellant submitted before Dowsett J that the assessment was not valid, or the decision to accept the application for assessment was not valid, because he was not given notice and he did not consent to the process of assessment. 4 Another point relating to the validity of the provisions relating to assessment was rejected by his Honour, having regard particularly to the decision in Luton v Leseles (2002) 187 ALR 529. We see no error in that approach. That decision forecloses any constitutional challenge. 5 With respect to the alleged requirement of consent, his Honour held that there was no substance in law to it. We agree. 6 His Honour accepted that notice may not have been given to the appellant, but that by 3 November 1994, the appellant had come to hear of the decision to accept the application. He subsequently applied to vary the assessment, but did not challenge it. 7 Section 72 preserves the validity of an assessment. His Honour observed that the specific terms of s 34(3), which deal only with the contents of the notice to be given under s 34(2), might leave open the question of the effect of failure to give notice under s 34(1). However, it would seem to follow, his Honour held, that if s 72 preserves the validity of the assessment, it is unlikely to have been intended to invalidate acceptance of the application upon which it was based. His Honour, however, finally determined the matter on discretionary grounds. 8 What the appellant had not done was to take any point about notice. If he had done so, other remedies might have been available to him under the Act. Indeed, his Honour specifically found: 'The applicant's conduct in seeking to vary the assessment at that time suggests that, if there was any irregularity of which he was aware, he had by that time chosen to take no action with respect to it' (Whittaker v Child Support Registrar [2002] FCA 1429 at [5]). 9 Having elected not to do so, he could not, much later, complain of lack of service of notice of the acceptance of the application (see Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589 at 604). 10 In any event, relief by way of certiorari is discretionary. The circumstances did not suggest to his Honour such relief as an appropriate exercise of discretion. We do not consider that his Honour's discretion has in any way miscarried. The appeal should be dismissed. I certify that the preceding ten (10)numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Cooper & Kiefel.