Table of Contents
1. Child Support
1.1. Relief sought
1.2. The deposed facts
1.3. Argument as to contrary submission
1.4. Apology
1.5. The legislation
1.6. Inflation factor
1.7. Flowchart explanation
1. Child Support
1.1. Relief sought
1.1.1. I am asking the Court to settle a matter concerning a Child Support Agreement
between the wife and myself for the maintenance of our four children under Part 6 of the
Child Support (Assessment) Act 1989 (herein called the CSAAct) which the Child
Support Registrar has been unable to deal with over 3 years of utter harassment,
intimidation, fraud, duress, moral cowardice by those delegated or otherwise in the Child
Support Agency which has resulted in the complete and total degradation of my physical
and mental health and caused me to be on sickness leave at the time of this hearing,
prejudicing the preparation of my case for my legal right to my property.
1.1.2. It is ironical in my submission that it was a Child Support Agreement which
caused the unfortunate Ian Gilmour to be subjected to 4 separate court cases, the second
of which produced the appropriate, in my submission, comment from Bell J concerning
the thuggery of the CSA which I too have had to bear:
"it is a creature of its own creation - it is getting bigger and bigger and bigger and
bigger - it is - it is eating itself"
1.1.3. This application simply seeks to properly register the Agreement which but, to
use the words of Kay J in Halge and Carroll [1998] FamCA 110 (12 June 1998) "by some
osmosis", the Child Support Registrar has been unable to do. It does not seek
compensation for the horrific torment and torture I have suffered via what Kay J in Halge
(supra) described as
"Out of the fog of this case comes absolute confusion brought about in part by the
personalities of the parties and their inability to give me straight answers to any
question that was required of them to answer, but contributed to an enormous
degree by bureaucratic inefficiency within the Child Support Agency."
but rather that compensation will be sought by separate clean form of application to the
Finance Minister as detailed in Halge (supra) under s 33 of the Financial Management
and Accountability Act 1997 (Cth), which application I am sure he will consider with
alacrity between ads for Telstra shares.
1.1.4. To return to the epic Halge (supra) it was then said by Kay J:
"There are two children the subject matter of these proceedings, R, who was born
on 16 August 1976 and S, who was born on 6 July 1982. The parties have been
litigating in this Court for so long that the files are almost disintegrating when
they see the light of day."
In my case the longevity of the familial violence (to use the word of High Court judge
Brennan J in Harris and Caladine (1991) 172 CLR 84 F.C. 91/008) inflicted by the Child
Support Registrar on my family and myself has transcended "happening events" (as
defined by the CSAAct) for 2 of my children and now 4 "eligible children" (as defined by
the CSAAct) have been reduced by bureaucratic bunglified and amplified time to 2
children. This submission seeks to put to bed the Gilmour (supra) "fog and dust" of the
registration aspect of Child Support Agreements (without seeking to explore the fog and
dust of the variation issues of inter alia Gilmour [supra]).
1.2. The deposed facts
1.2.1. It will be evident, in my submission, that there has been a momentous
bureaucratic bungle in this case whereby the Attachment to my deposition reveals that a
ministerial level intervention has resulted in an admission that between the CSA and
DSS (as it was) there was a mistake via which our Child Support Agreement was NOT
registered by the Child Support Registrar (Mr Carmody) upon the Child Support Register
as required by the CSAAct and/or the Child Support (Registration and Collection) Act
1988 (herein the CSRCAct). As seen the Registrar was requested to rectify the problem
and register the Agreement back dated to 1996.
1.3. Argument as to contrary submission
1.3.1. It has been submitted by the CSA in a tirade of verbal and written diarrhoea
that there are reasons whereby, notwithstanding the ministerial admission of guilt as to
the failure of the DSS to forward the subject Child Support Agreement to the CSA, the
Agreement still can not be registered under the provisions of Part 6 of the CSAAct. That
submission relied upon a (verbal only) assertion, as "deposed" by the Registrar and those
assumedly delegated by him that the Agreement could not be registered because s 91A
required that an application for administrative assessment must be in place before any
application for an Agreement could be entertained.
1.4. Apology
1.4.1. In my haste to file documents on time paragraph 22 of my evidence in Chief
refers to sections 61A and 62 rather than 91A and 92. Whilst it may well be true that the
Registrar does not understand s 62 (estimates, especially for those deployed to East
Timor) and probably would not understand s 61A if it still existed after 1 July 1999, these
sections are not part of my case.
1.5. The legislation
1.5.1. Following amendment Act 39 of 1995 which came into being on 29 May 1995
the Registrar is required to refuse (in the first instance) to register any Child Support
Agreement which is applied for without the applicant having first applied for an
administrative assessment. S 92 of the CSAAct states:
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 92 Decision on application
92. (1) Subject to this section, if the Registrar is satisfied that an application made
to the Registrar for acceptance of an agreement made in relation to a child has
been properly made, the Registrar must accept the agreement.
(2) If the Registrar is not so satisfied, the Registrar may refuse to accept the
agreement.
(3) The Registrar must refuse to accept the agreement if the Secretary makes an
adverse decision under subsection 91A(3) in respect of the agreement.
(4) The Registrar must refuse to accept the agreement if:
(a) the party referred to in paragraph 83(1)(a) is in receipt of, or a claimant for:
(i) a sole parent pension; or
(ii) family payment for the child at a rate that is more than the minimum family
payment rate; or
(iii) a special needs sole parent pension; on the day on which the application is
made; and
(b) immediately before the application is made, no administrative assessment is in
force in relation to the child.
Note: For minimum family payment rate see subsection 6(1) of the Social Security
Act 1991.
1.5.2. Then under this seemingly convoluted and tortuous amendment the Registrar is
required to notify the parties of his decision. Clearly he did not do so and it appears
that the reason was the now admitted mistake that the application had "got lost" between
the Secretary (for DSS) and the Registrar. S 96 requires.
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 96 Notice of decision to
be given
96. (1) If the Registrar accepts or refuses to accept an agreement made in relation
to a child, the Registrar must immediately notify each party to the agreement of
the decision.
(2) The notice must include, or be accompanied by, a statement that specifically
draws the attention of the parties to the agreement to the right, subject to the
Family Law Act 1975, to appeal under section 132 to a court having jurisdiction
under this Act if he or she is aggrieved by the decision to accept or refuse to accept
the agreement.
(3) A contravention of subsection (2) in relation to a decision does not affect the
validity of the decision.
1.5.3. Because we were not notified the wife did not get to perform the next step
which was to apply for an administrative assessment whereupon, if she had, (to use the
fine words of Kay J in Perryman) the Secretary would then have been seized with power
to do all things as to making or not making "adverse decisions" with alacrity. The
bureaucratic bungling continued and eventually the wife did apply for an administrative
assessment but between the 2 of them the Secretary and the Registrar omitted to enter into
the required decision making process of s 91A
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 91A Procedure where payee
is in receipt of, or a claimant for, sole parent pension, additional family payment
etc.
When section applies
91A. (1) This section applies if:
(a) an application is made to the Registrar for acceptance of an agreement made in
relation to a child; and
(b) the party referred to in paragraph 83(1)(a) (the "eligible person") is in receipt
of, or a claimant for:
(i) a sole parent pension; or
(ii) family payment for the child at a rate that is more than the minimum family
payment rate; or
(iii) a special needs sole parent pension; on the day on which the application is
made; and
(c) immediately before the application is made, an administrative assessment is in
force in relation to the child.
Note: For minimum family payment rate see subsection 6(1) of the Social Security
Act 1991.
Copy of agreement to be sent to Secretary
(2) As soon as practicable after the application is made, the Registrar must send a
copy of the agreement to the Secretary.
Secretary to decide whether the agreement passes the "reasonable action to obtain
maintenance" test
(3) The Secretary must decide whether or not the eligible person would cease to be
qualified for the pension or payment because of section 252 or 777A or point 1069-
D11 of the Social Security Act 1991 if it were assumed that:
(a) the Registrar were to accept the agreement; and
(b) if the eligible person is a claimant for the pension or payment- the eligible
person were in receipt of the pension or payment. The Secretary is said to make an
adverse decision under this subsection if the Secretary decides that the eligible
person would so cease to be qualified for the pension or payment.
Note 1: Sections 252 and 777A and point 1069-D11 of the Social Security Act 1991
deal with the "reasonable action to obtain maintenance" test.
Note 2: Chapter 6 of the Social Security Act 1991 provides for review of decisions
under this subsection.
Secretary to tell Registrar about decision
(4) As soon as practicable after the Secretary makes a decision under this section,
the Secretary must tell the Registrar about the decision.
Secretary to notify parties to the agreement about an adverse decision
(5) As soon as practicable after the Secretary makes an adverse decision under
subsection (3), the Secretary must give each of the parties to the agreement a
written notice setting out the decision.
Delegation
(6) The Secretary may, by writing, delegate all or any of his or her powers under
this section to an officer of the Department of Social Security.
1.5.4. Obviously none of these conditions were heeded by either the Secretary or the
Registrar, but even if they had been it will be seen that by virtue of ("if the Secretary
decides that the eligible person would so cease to be qualified for the pension or
payment") that the decision the Secretary would have been required to make was a "non
adverse one", whereupon the Registrar was then once again seized with power (in fact
requirements) to register the agreement via
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 92 Decision on application
92. (1) Subject to this section, if the Registrar is satisfied that an application made
to the Registrar for acceptance of an agreement made in relation to a child has
been properly made, the Registrar must accept the agreement.
1.5.5. The gravamen of the multitude of errors and illegalities is that the (verbal only)
advice of the Registrar's decision to not register the agreement is a proposition based on
s 91A. That is false. S 91A deals with the requirements of the Secretary to do all
manner of things. The only thing s 91A requires the Register to do is "the Registrar must
send a copy of the agreement to the Secretary", which he didn't do. It seems the
Registrar's verbal advice was more in line with his requirements under s 92 to initially
reject the application until an assessment application was made, but he did not do that.
And it appears that to this day this total disregard of the Registrar's duties under the
CSAAct has filtered through to incorrect advice to parents in printed (mis)information
from the CSA that "an agreement must not be less than an assessment".
1.5.6. What was interposed instead of all these activities by the Registrar and the
secretary was, in my submission, harassment, intimidation, fraud, demanding of money
with menaces, duress and thuggery. I would ask this court to instate or cause to be
instated our Agreement as of May 1996, make the requisite changes to my transaction
statement and send the refund to me, as in Halge, before trying to get the money from the
wife per:
The Commonwealth suddenly turned around and said words to this effect:
"We want $7000 from you, madam, and we are going to intercept your tax
returns and we are going to intercept your social security entitlements and we
are going to adjust the maintenance back to $20 per week and we are going
to even intercept some of that. However if your husband is generous enough
to give you the $7000 we are going to give him, then you can give it to us
and everybody will be happy."
1.5.7. As for Mr Halge I too am just a little Aussie battler per:
Mr Halge received the $7000 gratefully from the Commonwealth, having
complained about having no liability to pay it. He went about spending it.
Compared to the wife he is a man of significant means but compared to most
members of the community he is what one could call `a little Aussie battler'.
He owns a house. He says it is worth $200,000 with a mortgage of $60,000. He
says that even his equity in his house has been achieved through the charity of his
family (brothers and sisters) to whom he feels some moral or legal obligation to
repay. I am not satisfied that there are any debts in respect of the home beyond the
mortgage. His taxable income fluctuated between $8,000 and $13,000 over the
early years of this decade and since 1995, has been around the $26,000 to $29,000
mark. This is below average male earnings and hardly paints a picture of
significant financial resources. He owns an $8,000 car on which he owes $13,000
and he has another car which he allows his 22-year-old son to drive.
The moneys were received by the husband in January 1997. Apart from the
purchase of a computer for the children and some audio equipment, the rest of the
money seems to have been absorbed in general living expenditure, which is
understandable, having regard to the relatively modest amounts of income that the
husband has been earning.
It is understandable why the husband said:
"I'm not going to give this money back to the Commonwealth or to my ex-wife
in circumstances where she did not want it, I didn't have to pay it and we kept
telling the Commonwealth about it".
1.5.8. What remains, perhaps for another time unless this court wishes to become
involved with any obiter dictum as to the liability of the Registrar and Secretary is the
matters referred to in Halge per:
Miss Bennett, on behalf of the Agency in the proceedings before me, says that if the
wife would write an explanatory letter to the Commonwealth, then a
recommendation might be made by the Agency to the Minister for Finance under s.
34 of the Financial Management and Accountability Act 1997 (Cth) to try to
persuade the Finance Minister to waive the debt which has been created by the
overpayment to the wife of moneys to which she was not entitled, overzealously
collected by the Commonwealth. She has an obligation to repay those moneys
because of the provisions of s. 79 of the Child Support (Registration and
Collection) Act.
In my case I would be looking to have the Finance Minister exercise s 33 of the Financial
Management and Accountability Act 1997.
1.6. Inflation factor
1.6.1. In anticipation of the Registrar trying the "inflation factor trick" (now
"exposed" by a CSA Child Support Ruling - for those who read Rulings) on me as he
fraudulently did for Mr Gilmour after his 4 court cases (costing him an extra $912 on top
of some $30,000 in unnecessary legal costs), as my agreement is for a weekly amount
rather than a child support income amount to be used in the formula, the correct inflation
factor is the CPI inflation factor used in s 39 of the CSAAct (1% last year) and NOT the
increase in the AWE (4% last year).
1.7. Flowchart explanation
1.7.1. To further assist the court (and even perhaps the CSA) to understand the
procedures under the legislation (CSAAct and SSAct), I have provided a flowchart on the
following page. As seen, if there is no assessment in force, there are 2 distinct
applications to be made, ie at 1 and 5. The problems in this case were that:
firstly, the Secretary of Centrelink failed at 1 to pass on the application the CS Registrar.
secondly, when the application was found and passed on the CS Registrar failed at 2, 3
and 4
thirdly, when the new application was made at 5 the CS Registrar used the test of 2 rather
than the path of 6 to 11, meaning that the test as to "reasonable action" via the Secretary
was never able to be carried out.
1.7.2. Although it is very difficult to discern any process or excuse under the name of
logic in the actions of both these bungling departments, it would seem their (incorrect)
stance is that if an applicant for a CS Agreement makes an initial application before
having an assessment done, then there is no path to recover by having an assessment done
and resubmitting the Agreement. It is confusing.
