Whittaker v Child Support Registrar [2002] FCA 1429 (24 October 2002)

Last Updated: 22 November 2002

FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2002] FCA 1429

MARK ALAN WHITTAKER v THE CHILD SUPPORT REGISTRAR

Q 115 OF 2002

DOWSETT J

24 OCTOBER 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 115 OF 2002

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	THE CHILD SUPPORT REGISTRAR RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	24 OCTOBER 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 115 OF 2002

BETWEEN:	MARK ALAN WHITTAKER APPLICANT
AND:	THE CHILD SUPPORT REGISTRAR RESPONDENT

JUDGE:	DOWSETT J
DATE:	24 OCTOBER 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 I am presently considering an application for a writ of certiorari quashing the decision of the Child Support Registrar to accept an application for administrative assessment made under s 30 of the Child Support (Assessment Act) 1989 (Cth) (the "Assessment Act") in respect of the applicant and for other relief.

2 The relevant legislation is apparently designed to facilitate the enforcement of maintenance obligations upon parents of children, particularly where family relationships have broken up. It may well be that the legislation owes more to a desire to protect government revenue than to any desire to regulate the obligations of the parents, but that is not a matter with which I am presently concerned.

3 The structure of the Assessment Act contemplates that a person having care of a child may apply to the Registrar for administrative assessment of child support pursuant to s 23. The Registrar is to consider the application and determine whether or not to accept it. In so doing, he or she is to act upon the material provided by the applicant and is not required "to conduct any inquiries or investigations into the matter." See s 29.

4 Where the Registrar determines to accept the application, he or she must then immediately proceed to assess the amount of child support to be provided. Section 34 provides as follows:

(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 (as the case requires), in writing.

(2) The notice must also include, or be accompanied by, a statement that specifically draws the attention of the person from whom the application sought payment of child support to the right, subject to the Family Law Act 1975, to apply to a court having jurisdiction under this Act for a declaration under section 107 that 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.

5 The questions arising for determination are firstly, whether or not this process was followed in the present case and secondly, if it was not, what the consequences may be. Much time was spent at the outset in determining whether or not a notice pursuant to s 34 was ever produced by the Agency. In the end, although there is no direct evidence of such production, I am willing to infer that such a notice was produced. It is quite clear that by no later than 3 November 1994, the applicant was aware that an application had been made against him. On 6 January 1995, he applied to vary the assessment. In those circumstances I infer that the Registrar determined to accept such an application and made an assessment which had, in some way, come to the knowledge of the applicant. 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.

6 Subsequently, there has been an extended history of litigation concerning the assessment. During 2000 the applicant sought prerogative relief. On 30 November 2000, Drummond J dismissed the application. It is clear that the first of three decisions which were the subject of his Honour's reasons concerned the applicant's application of 6 January 1995 to vary the assessment. It is now too late for him to cavil about the circumstances in which the original determination was made. Any such complaint should have been raised before Drummond J, if not at a much earlier stage.

7 In any event, there is no substance in the present applicant's criticism. He raises a number of points of complaint. The first is that some of the provisions of the Assessment Act, particularly those relating to the acceptance of an application and assessment, require the exercise of the judicial power of the Commonwealth and that they have been inappropriately conferred upon the Registrar. Such an argument is impossible to mount in face of the decision of the High Court in Lucen v Lessels [2002] HCA 13; (2002) 76 ALJR 635. The applicant argued that Lucen concerned only Part 6A of the Act and the provisions of the supporting legislation, the Child Support (Registration and Collection) Act 1988 (Cth) (the "Collection Act"). However, I cannot accept that proposition. At par 62 in the joint decision of Gaudron and Hayne JJ, it is made clear that the challenge was to the validity of the whole of the legislation. It also appears from the reasons of other members of the Court that the determination as to the validity of the legislation extended to all of the functions conferred by the Assessment Act. See, for example, the decision of Gleeson CJ at [22]. I do not consider it necessary to take the Constitutional argument any further.

8 The true thrust of the applicant's challenge to the decision by the Registrar (to accept the application for assessment and to assess the child support payable) is a perception that such assessment can only take place with the consent of the person against whom the assessment is sought. There is no statutory authority for this proposition, and the applicant does not say that there is. His argument is rather that for some reason associated with his perception of the common law, it is necessary for the purposes of the Assessment Act that such consent be obtained. As I say, there is no support whatsoever for this in the legislation, nor am I aware of any aspect of the common law which would lead to that view. The point is simply without substance. As a corollary to that argument, the applicant also submitted that he may withdraw his consent at any time and that he has done so with effect from 1 July this year. He says that the effect of this is that he is no longer under any obligation with respect to the Act. Again, there is simply no justification for this view.

9 The appellant swears that he did not receive a notice pursuant to s 34. His affidavit has not been challenged in this regard, nor was he cross-examined. I see no reason to doubt that what he says is correct. However, as I have pointed out, by not later than 3 November 1994 he was aware that an assessment had been made. Shortly thereafter, he sought to vary it. Had there been any ground for challenging the validity of the process adopted by the Registrar, it ought to have been ventilated at that stage. See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 604. Further, pursuant to Part 7 of the Act, there is provision for review both of the overall question of entitlement and of the assessment. See ss 107 and 110 of the Act. It appears from the judgment of Drummond J to which I have referred that the applicant made it clear in those proceedings that he had deliberately chosen not to pursue such avenues of relief. In those circumstances it is difficult to see why discretionary relief of the kind now sought ought be granted to him. In any event, it seems to me that he has waived or acquiesced in any failure to give him notice in 1994.

10 It may be arguable that failure to comply with the notice provision of s 34 would lead to invalidity. Sub-section 34(3) provides that a contravention of subs 34(2) will not invalidate the decision. This raises the possible inference that a failure to comply with subs 34(1) would do so. However Mr Eliadis, for the respondent, points to s 72 of the Assessment Act which provides:

Except in an appeal under Division 3 of Part 7, the validity of an assessment is not affected because any of the provisions of this Act have not been complied with.

11 He submits that if an assessment is valid, then a condition precedent to that assessment, such as acceptance of an application, must also be valid. There is much to be said for that argument. I was referred in argument to In the Marriage of Portillo (1994) FLC 92-484 at 81,050. In that case Kay J relied upon the old dichotomy between mandatory and directory language, which dichotomy was disapproved in the recent decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. It is not necessary that I resolve that question in view of the attitude which I have taken to the other matters. In the circumstances, I decline to grant the relief sought. The application is dismissed. The applicant should pay the respondent's costs of the application, including reserved costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 21 November 2002

The Applicant appeared in Person
Counsel for the Respondent:	Mr M Eliadis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 October 2002
Date of Judgment:	24 October 2002