Mark Alan Whittaker v Child Support Registrar

MARK ALAN WHITTAKER
v
CHILD SUPPORT REGISTRAR
[2013] HCASL 39
B77/2012

The applicant seeks special leave to appeal against the orders of the Full Court of the Family Court of Australia (Coleman, May and Murphy JJ) refusing him leave to appeal against orders of the Federal Magistrates Court. The Federal Magistrate (Slack FM) had ordered the applicant to pay a total of $30,537.29 for arrears of maintenance and late payment penalties.
In this Court the applicant would seek to argue (in effect) that the applicable provisions of the Child Support (Assessment) Act 1989 (Cth) are invalid and that recovery of any statutory debt under that Act was barred by the Limitation of Actions Act 1974 (Q). In addition to these arguments advanced in the Courts below, the applicant would seek to allege that there had been an unauthorised use of his tax file number contrary to the Taxation Administration Act 1953 (Cth).
In Luton v Lessels[1] the scheme established by the Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth) was held not to be a tax. Although the legislative provisions engaged in the applicant's case are not in identical form to those considered in Luton v Lessels, the principles applied in that case require the conclusion that the applicant's challenge to validity will fail.
[1](2002) 210 CLR 333; [2002] HCA 13.
As for the allegation that the claims were statute barred by s 10 of the Limitation of Actions Act 1974 (Q), that section has no application in its terms to amounts due under a federal statute. There is no reason to doubt the Full Court's conclusion that the Commonwealth legislative scheme is complete on its face and that the State Act is not picked up and applied by s 64 of the Judiciary Act 1903 (Cth)[2].
[2]Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 55; [1988] HCA 29.
Whether there was, as the applicant asserts, some unauthorised use of his tax file number is a question of fact not explored in the Courts below. Even if there were some unauthorised use, the applicant does not show how this would relieve him of liability to pay either the arrears of maintenance or late payment penalties.
As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
We see no reason to doubt the correctness of the Full Court's decision to refuse the applicant leave to appeal. An appeal to this court would enjoy no prospect of success.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan

CaseChat Overview and Summary

The matter before the Court was an application for special leave to appeal by Mark Alan Whittaker against the Full Court of the Family Court of Australia. The applicant sought to challenge orders of the Federal Magistrates Court which required him to pay arrears of maintenance and late payment penalties totaling $30,537.29. The Full Court had refused the applicant leave to appeal against these orders. In the High Court, the applicant proposed to argue that certain provisions of the Child Support (Assessment) Act 1989 (Cth) were invalid, that the recovery of statutory debt under that Act was barred by the Limitation of Actions Act 1974 (Q), and that there had been an unauthorised use of his tax file number contrary to the Taxation Administration Act 1953 (Cth).

The Court had to consider whether the applicant's challenge to the validity of the child support provisions, his argument that the claims were statute barred, and his allegation of unauthorised use of his tax file number had any merit. The Court found that the challenge to validity would fail based on the principles applied in Luton v Lessels. The Court also found that the Limitation of Actions Act 1974 (Q) did not apply to amounts due under a federal statute. Furthermore, the Court found that even if there was some unauthorised use of the applicant's tax file number, this would not relieve him of liability to pay the arrears of maintenance or late payment penalties.

The Court concluded that the application for special leave to appeal had no prospect of success and dismissed the application. The Court found that the Full Court's decision to refuse leave to appeal was correct. The Court directed the Registrar to draw up, sign and seal an order dismissing the application.

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