Child Support Registrar v Farley & Anor [2012] HCATrans 118 (11 May 2012)

Last Updated: 17 May 2012

[2012] HCATrans 118

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S371 of 2011

B e t w e e n -

CHILD SUPPORT REGISTRAR

Applicant

and

MS FARLEY

First Respondent

MR HALEY

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 11.55 AM

Copyright in the High Court of Australia

MR G.T. JOHNSON, SC: May it please your Honours, I appear with my learned friend, MS R. GRAYCAR, for the applicant. (instructed by Australian Government Solicitor)

MR G.R. KENNETT, SC: May it please the Court, I appear with MS V.A. McWILLIAM for the first respondent. (instructed by Legal Aid NSW)

GUMMOW J: There is a submitting appearance for the second respondent.

MR KENNETT: That is correct.

GUMMOW J: Yes, Mr Johnson.

MR JOHNSON: Your Honours, this particular case concerns the functions of the Child Support Registrar, under the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, particularly in a certain situation, and that situation is where a person who has been paying child support for more than one child is subsequently found not to be the biological parent of one of those children, though is nonetheless the parent of one or more other children of the payee, and the person, the payer if you like, is in arrears even after taking into account that on the true position as to paternity as reflected in a section 107 declaration he ought only have been assessed for the one child.

Now, the majority held that the Registrar does not have statutory power to adjust the Child Support Register in the manner in which she did in this case, and the way in which she adjusted it in this case was to apply a reduction of the arrears that were still in existence as regards the child with respect to whom he was the parent, the difference between what Mr Haley, the second respondent, would have been assessed for if he was only assessed for one child and the payments made by Mr Haley on the basis that there were two children for whom he was assessed liable. Now, section 37 of the Act is perhaps the - - -

GUMMOW J: There was no power in the Registrar to determine a refund, was there?

MR JOHNSON: That is correct. The Registrar says – this is jumping ahead a little - - -

GUMMOW J: Yes.

MR JOHNSON: - - - that there is but one assessment, even though it might relate to more than one child. In circumstances where the difference between what, in the light of the 107 declaration, might be described as the correct assessment and the incorrect assessment, in circumstances where that difference is less than the arrears that are still owed in relation to the child, which is in this case Mr Haley’s, well then the difference can be applied in reduction of the arrears.

KIEFEL J: To do that would involve a determination as to his liability in relation to the other child, would it not?

MR JOHNSON: Yes.

KIEFEL J: The Registrar’s power to do that.

MR JOHNSON: Well, it is not so much a determination of a liability in relation to the particular - sorry, the court has made a declaration under section 107(5) of the Act in relation to liability, so that job of making a – sorry, I might go to section 107(5).

KIEFEL J: That has the effect that the assessment in relation to the child which is not his is “taken never to have been accepted by the Registrar”.

MR JOHNSON: No, the application is taken never to have been accepted, which could become important. Could I just reverse a little bit, your Honour, just to deal with it this way? The court made a declaration under section 107 of the Assessment Act, and section 107(5) provides that:

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.

Now, the declaration which is there envisaged is that which subsection (1) of 107 envisages being given. Subsection (1) provides that:

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 because the person is not a parent of the child concerned.

Now, once such a declaration is made one then goes to 107(5) which says that:

the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.

One is then also driven to section 37 of the Collection Act – if I could just ask your Honours to go to that briefly – and section 37 of the Collection Act provides that:

Where the Registrar is of the opinion . . .

(i) an order has been made by . . . a court . . .

and the order or agreement varies or otherwise affects a registered maintenance liability . . .

the Registrar shall make –

and these are probably the important words –

such variations (if any) to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to enable the order or agreement to be given effect to under this Act or to take account of the happening of the event, as the case may be.

Now, what this case is really all about is how the Registrar gave effect to that obligation under section 37 once that declaration under section 107 of the Assessment Act had been made.

KIEFEL J: Well, the majority in the Family Court at paragraph 89 said that it would be “necessary to calculate the amount” paid for the child of which he was not the father “and to remove that amount from the Register”.

MR JOHNSON: That is correct.

KIEFEL J: It would probably follow from that that those moneys would be refunded to him as moneys had and received.

MR JOHNSON: That is a finding of the majority that we are disputing.

KIEFEL J: Yes.

MR JOHNSON: That finding that the Registrar had to, in effect, deal with the whole thing in such a way as to ignore that moneys had been paid - - -

KIEFEL J: Why would not that, though, be giving effect to the declaration?

MR JOHNSON: There are a couple of things to be noted, your Honour. Firstly, when one goes to section 37 one finds that the words, “as she considers”, or “as the Registrar considers necessary or desirable”, give the Registrar some latitude as to how account is going to be taken of the declaration. But more importantly – and this I think runs to the kernel of all of this, your Honour – the majority of the Full Family Court were of the view that what was required under section 37 was not only the recalculating of the liability of the father and limiting it to one child - we have no difficulty with that as far as it goes – but excluding from the Register all payments made by the father in relation to the child H for whom there had never been any liability.

KIEFEL J: Why does not that follow from the fact that the application in relation to that child “is taken never to have been accepted”?

MR JOHNSON: Because there was still at all times a child support assessment, he still in fact made payments - - -

KIEFEL J: But then what you are saying is that the act of the Registrar under section 37 is giving effect to the earlier order – the earlier administrative assessment, but that assessment has been effected by the section 107 declaration.

MR JOHNSON: The way in which the Registrar gave effect to the declaration in this case was to note that even allowing for the fact that Mr Haley was the father of only one of the children and not two, even allowing for that fact, there were still arrears owed by him in relation to the child for which he was liable, and what the Registrar did was to take into account the difference which has been referred to in reduction of those arrears. So what the case ultimately depends upon is probably an examination of the particular provisions - - -

GUMMOW J: There were also penalties, were there not?

MR JOHNSON: There were also penalties that needed to be – that is correct, the Federal Magistrate noted that. Your Honour is correct. There was an amount of roughly $11,000 which was applied in reduction of arrears. The particular sections which need to be examined to see whether or not they require the Registrar to ignore payments that he has in fact made and to in effect recover the same amount again in reduction of the arrears, section 37 of the Collection Act, section 67 of the Assessment Act, and section 107(5) of the Assessment Act as well as section 143 of the Assessment Act, and there is also some reference to section 26(1)(g) of the Collection Act, although that may not be as important as some of the other provisions. Could I just shortly indicate what we say about each of those provisions?

Firstly, in relation to section 37 of the Collection Act, the Registrar complied with that by reducing the amount owed regarding T, the child for whom he was liable, by the amount already paid, adopting the rubric in relation to H, and that was something which we say was something that she was entitled to do under section 37 given the latitude that she was allowed by those words “considers necessary or desirable to enable the order . . . to be given effect to” and whereas the majority held that section 37 required not only recalculating the liability of the father in limiting it to one child – which is a proposition that we do not dispute – but also excluding from the Register all payments actually made by the father in relation to the child H - - -

KIEFEL J: Is the purpose of the Register relevant here? The purpose of the Register is to record payments made and what is owing. Is that its purpose?

MR JOHNSON: But not payments in relation to the particular child.

KIEFEL J: Is there a section which deals with the purpose of the Register?

MR JOHNSON: Section 10 of the Child Support (Registration and Collection) Act provides that:

There shall be a Child Support Registrar –

and tells us who the Child Support Registrar is.

KIEFEL J: Section 13(1).

MR JOHNSON: Then section 13, yes:

(1) The Registrar shall keep a register, to be known as the Child Support Register.

(2) The Child Support Register shall be kept in such form (whether or not in a documentary form) as the Registrar considers appropriate.

KIEFEL J: Is there no other provision to say what it is meant to record? One would assume that it is meant to record amounts owing and amounts paid.

MR JOHNSON: Broadly, that is correct, but not, we say, to separately record an amount with respect to each child. Could I just perhaps add some flesh to that by just asking your Honours to - - -

KIEFEL J: Well, that would depend upon the terms of the assessment. The Register would have to follow the terms of any assessment and any order.

MR JOHNSON: Well, with respect to the assessment, a part of the Registrar’s submission to which I am coming is there is but one assessment even though it might be in relation to different children. If your Honour just goes to the Assessment Act for a moment, section 37 was to be read in connection with the basic formula prescribed there in section 36, but notice how in section 37, as it was then:

The liable parent’s child support percentage is the percentage ascertained using the following table –

That is the child support percentage referred to in section 36(1). Notice that there is one percentage if there is one child and another percentage if there are two, but it is not a matter of there being, say, if there are two children thirteen and a half per cent with respect to one and thirteen and a half per cent with respect to the other; rather it is 27 per cent if there are two and 18 per cent if there are one.

KIEFEL J: But it is ascertainable, so - - -

MR JOHNSON: Well, the court has not really indicated how it is ascertainable, and what we say in relation to this is that what we are really talking about here is what we do in relation to amounts that he has already paid, do we completely ignore those amounts or not?

GUMMOW J: Would they not be picked up under section 143(3)?

MR JOHNSON: Section 143, in the Registrar’s submission - and this is another of our differences with the court below – section 143 is an inter partes provision. Section 143 speaks to, in effect, the rights of Mrs Farley against Mr Haley, but section 143 says nothing about the power of the Registrar.

GUMMOW J: No, the point put against you is that this is an Anthony Hordern type provision. Section 143 is a specific provision dealing with this problem. It is a particular way of going about it and subsection (3) gives a particular mechanism in the court to achieve the just result.

MR JOHNSON: It is a mechanism available to Mrs Farley, but it does not cover the field as to the Registrar’s options. Indeed, it does not speak to the Registrar’s options. It only speaks to her options. So that is the central point that we make in relation to section 143, that it is essentially an inter partes provision and it is not the - - -

GUMMOW J: What do you say about paragraph 33 of the majority in the Full Court? I do not quite understand the point you are making.

MR JOHNSON: I am sorry, did your Honour say - - -

GUMMOW J: Paragraph 33 of the Full Court reasons.

MR JOHNSON: Did your Honour say 33 of the Full Court reasons?

GUMMOW J: In the Chief Justice’s reasons - but nevertheless, is it not an important provision?

KIEFEL J: I think the majority take it up at paragraph 95.

MR JOHNSON: Yes. Just in relation to Justice Gummow, if I may? The Chief Justice ultimately accepted the Registrar’s position.

GUMMOW J: I know.

MR JOHNSON: Her Honour saw 143 as effectively having an inter partes role and not as stopping the Registrar from doing what she did.

GUMMOW J: That is the question.

MR JOHNSON: That is an important question thrown up by the present application. We are taking issue with the suggestion of the majority that 143, in effect, provides a code, or completely covers the field, including as regards the Registrar as to - - -

GUMMOW J: Well, it is plain in its terms, and you have to stretch and strain the Registrar provisions to achieve what was done here, I would have thought.

MR JOHNSON: Well, the terms, your Honour, at 143 – and it is really subsection (1) I think that we – probably only subsection (1) that we need to go to - - -

GUMMOW J: And subsection (3).

MR JOHNSON: Yes, subsection (3) provides amounts that the court – indicates that the court may take into account particular things for the purposes of its decision, but - - -

GUMMOW J: And “the rights of the parties” would be the rights as disclosed by the revelation of the true parentage of this child.

MR JOHNSON: But the recovery right – sorry, I am not interrupting your Honour, am I? The field of section 143 seems to be the right of, in this case, Mrs Farley to recover against Mr Haley. Those last words of subsection (1):

the amount may be recovered from the payee in a court having jurisdiction under this Act -

certainly enable Mrs Farley to take that course, but that is not to say that if she does not the Registrar has to ignore amounts already paid by him. I do not know that I can take it any further than that this morning, your Honour, but plainly there is a difference of opinion between the Chief Justice and the majority on that point and that is a part of what we wish to agitate.

In relation to section 107(5) of the Assessment Act, that provides in effect that the application for administrative assessment in circumstances where a declaration is made is taken never to have been accepted, but that does not we say in terms require the Registrar to remove anything from the Register or to ignore payments that have in fact been made. In relation to the question of how many assessments there are, we say there is one assessment under section 67 regardless of the number of children who are affected, but that is also supported by the language of section 77 of the Assessment Act. That assessment relates to all of the children, not to any of the children separately. We dispute that section 26 provides – or leads to any different conclusion for the reasons that we have outlined in writing.

Now, all of these questions of how to construe the statute go ultimately to the question which I outlined at the beginning and we say that that is of significance in child support cases, particularly where there are arrears involved, and these cases, as your Honours know, can have quite a long tail because people can obviously be liable in relation to child support for 18 years. So any difficulty which arises in this case as a result of the various provisions may very well have an impact upon other cases. I will not refer in detail to the affidavit which has been - - -

GUMMOW J: You have had the red light on for some time, Mr Johnson.

MR JOHNSON: I am sorry, your Honour, I missed the red light. Your Honours have been very patient if I have had the red light on; I failed

to note. Your Honours, I think I have made the points that we wish to make. Thank you, your Honours.

GUMMOW J: We do not need to call on you, Mr Kennett.

We see no reason to doubt the correctness of the conclusion reached by the majority in the Full Court of the Family Court. Accordingly, the application for special leave is refused. Is there any question of costs that arises?

MR JOHNSON: Your Honour, we are content that costs would follow the event.

GUMMOW J: Be dismissed with costs.

The Court will adjourn to reconstitute.

AT 12.23 PM THE MATTER WAS CONCLUDED