(Names have been changed to comply with the legal requirement of non-identification)
Read the following summary from the solictor who is acting for Mr Parkins in thiis matter.
The text below extends beyond Mr Parkins circumstances directly by analogy and example. However, given your Association’s charter, there is I believe relevance to your objects and for this reason wish to precursor dialogue and formation in related causes. For this reason, I have extended the text slightly without losing relevance and also to put the questions raised into a broader focus of the strategic issues governing men’s rights.
QUESTIONS OF LAW
Of interest to the Men’s Rights Agency are the following public interest matters:
- The question of men’s mental and physical health concerning the invidious wearing down of Mens’ resolve to challenge bad decisions based on bad or no facts
- The question of delay resulting therefrom in making applications, fighting the CSA system and winning with justice
The administrative issues concerning this case are not the same as the substantive issues. I classify the administrative issues before the Federal Magistrates Court (FMC) broadly as this:
- Did the SSAT and the CSA err in their application of their statutory powers, particularly from around ss.110F – 118 of the Child Support (Administration) Act;
- Within (1) above, the bevy of administrative law issues including administrative error, jurisdictional error, error of law, ultra vires, male fide, error of law on the face of the record and prerogative writs and equitable relief in particularly Declaratory relief, concerning the conduct of the SSAT and CSA;
- Specifically, the question of DELAY. There are two requests to the FMC that need to be overcome in this matter:
- Delay in Mr Parkin within the administrative process itself
- Delay in filing this application for review before the FMC (some two years after the final SSAT decision in 2010)
- What role does the payer’s health have in remitting in whole or part the Final Assessment obligation
- Is the CSA and/or SSAT wrong in fact and law concerning their Final Assessment?
- Does the law permit a “departure for the whole period of 4 x assessments, a small part which lies within the 18 month period from date of Final Assessment and the larger part which lies outside the 18 months and wholly within the 7 years period?
- Assuming the assessment is correct and accurate, does Mr Parkin have grounds under financial hardship and on grounds of inequity in being to not be compelled to meet this $16K+ assessment?
- What is the force of argument of the Minister for Human Resources’ Delegate and thence the SSAT in compelling this tax obligation at a time when both children the subject of this Final Assessment have long since reached the age of majority?
ANALOGIES TO OTHER JURISDICTIONS – THE OPPORTUNISTIC JURISDICTIONS OF “FAMILY” LAW AND “CHILD SUPPORT” LAW
As a serving Flight Lieutenant in my third enlistment of military service, I like to use military analogies. To me, the CSA process is applied like a cowardly act of war crime committed by placing women and children (non-combatants) ahead of combatants in a battlefield. This jurisdiction, like other jurisdictions such as so-called “corporations law” and liquidator’s conduct, appears to place noble interests such as “the best interests of the child” in the case of the CSA or “the creditors” in the case of the liquidators’ conduct in corporations law. However, the conduct of such “Officers of the Court” (liquidators) or the CSA (vis. Government agencies) is nothing more than a cynical device to uphold immoral practices of disseizing assets from men or hapless Directors of corporations, usually small family or sole trader businesses (and usually men), by technical trigger of procedures to illicit legal powers over them for the purpose of attacking their asset base. I could add the s.79 Family Law Act power going to so-called “property” applications. The ultimate end of such legislation is always to attack the asset base of men: their home, their business, their shares, their super.
Where else in the law do you find a power so broad and without forensic justification but for the statutory provision itself, as in the “property” power per s.79 of the Family Law Act? In civil jurisdiction you must prove your claim to sue – you must meet the elements of the tort in order to establish your statement of claim and provide sufficiency of particulars to commence action. In criminal law you must meet the prima facie threshold of evidence at the criminal standard of proof before you may charge the Defendant. But in Family Law, you only need to be married to claim a big percentage of (men’s) assets, without any justification other than the raw statutory right in s.79. Moreover, you don’t even need to be divorced! A s.79 application may be lodged at any time. The s.75 discretionary powers which drive the s.79 power are an ‘open mazaire’ for Judges in that jurisdiction to “pluck figures out of the air” in making property determinations: again, usually against men: a point I wish to work with you more closely in the future.
In jurisprudential terms, the application of powers such as the s.117 Child Support Administration power, and the ss.79/75/72 group of powers within the FLA are raw human laws, devoid of adherence to moral / natural law or grounds of culpability or forensic examinem. Such human law powers are entirely discretionary in the hands of the Court. There is no ‘science’ in the application of these powers. This is why you get mantras from Family Court Registrars making bland and scientifically baseless global opening remarks such as “this case is worth between 50% and 70%”. Where do such guesstimates of settlement moneys come from? A. They are simply “plucked out of the air”. This is what we must contend with in the application of present day powers. In child support law, we may also take no comfort in the statutory equations embedded in the collection and registration legislation.
In the case of family law, the discretionary variables are statutorily based. In child support law, the discretionary variables are by manipulation of the facts themselves.
For example, the common delusion about a Prenuptial Agreement protecting assets prior to marriage is almost a lie. Such agreements are prescribed as one of over about 20 discretionary factors the Family Court may consider when making a property determination. There is no priority in a Prenup over any other factor. It is a delusion for any man to think his property is more protected by the existence of a prenup. It is a fool’s paradise to think one’s assets are protected by such instruments.
Add to this reality the possibility of the “Kernon” claim (re-introducing fault within a no fault system) and the application of law becomes the height legal hypocrisy. The 1975 FLA legislation’s cornerstone and “selling point” was that the 1975 Act was supposed to be a NON-fault based system. The current Act dispensed with the prior fault based matrimonial causes system. In short, there was a time when you had to prove your claim for matrimonial assets. Typically, this was on grounds of infidelity, denial of conjugal rights or maintenance breaches. In stark contrast, today the administrative system we are bound to administer within the Family Law Act, including this Child Support law (which invokes key provisions of the FLA on critical issues such as cost orders), is nothing more than a singular statutory basis to take money at will from men to women (80% of all CSA payers are men). The tests that constitute the administrative procedure are nothing more than discretionary drivel. There is no jurisprudential science to the manner in which Courts and administrative decision makers below administer these powers, as you have long seen.
The system and its application becomes the opportunistic feminist driven imperative of “having the cake and eating it too”. Both family and child support human laws are built on the statutory presumptions of a bare posited right to property (s.79 FLA) on the one hand, without any duty to prove liability (matrimonial causes breaches) or guilt (criminal standard). In the case of child support, again the bare statutory posited law creates “out of thin air” a taxation liability on the payer (usually a male).
We see this not so much in the provisions of the law itself, although there are cynical statutory provisions to give the appearance of well-meaning policy driven statutes, such as the provisions within the Family Law Act dealing with “the best interests of the child”. This policy imperative actually translates to “Power of the State usurping the power of parents in the name of the rights of the child”, rather than the rights of the child per se.
As one specific example of recent invention, common law now overlays the “as of right” presumption to access to men’s property through decisions such as Kernon. Kernon gives the applicant to a property application (predominantly women) a “free kick” to infuse fault based liability when it suits them. In child support law, whilst the “noble” intention is to deduct moneys in support of the child, in reality, the system is predicated in a de facto system of punishment against men by abuse of process. This is why the Minister for Human Resources has invoked the powers of the AGS to fight Parkin’s matter. They are sufficiently concerned about our level of preparation that they are “upping the ante”. The bureaucrats are not concerned about the welfare of the two children, now of age, but rather the maintenance of their system of de facto male punishment by powers de jure.
PRECEDENT AND PROSPECTS OF SUCCESS IN Parkins
I give these observations for a reason to our future relationship in these causes.
These precursors and comments are to raise the real questions this case presents itself with:
- Extending the period of time by creating binding precedent the Courts will give regard to in allowing applications for administrative review of decisions of the SSAT out of time;
- Extending the grounds upon which such an extension may be granted;
- Acknowledging new heads of grounds upon which a (man) may challenge decisions of the CSA and SSAT for merit review decisions
- Directly challenging the merit or otherwise upon errors of fact and law in the manner in which the CSA deals with (men) in making final assessments for CSA liability
- Directly challenging the administrative errors, particularly in the fertile fields of natural justice and procedural fairness, in the making of presumptions as to a man’s credibility. In this case, a dominant theme against Mr Parkins is that he withheld information; was deceptive in respect to financial information, particularly going to mortgage data and capacity to borrow for a home loan; denying the CSA such information even against his protests that this was not the case; choosing to disbelieve Mr Parkins no matter what evidence there was to corroborate his version of facts including Police
THE THEME – “YOU’RE A CAUCASIAN MALE AND WE SIMPLY DO NOT BELIEVE YOU”
The reason I am introduced to Mr Parkins is because this theme runs deep in my own personal experience. It is astonishing how biased the system is against men. By this, I mean the paradigm that runs thick through the CSA and SSAT decisions, particularly application of statutory powers to all but accuse Mr Parkins of being a deceiving, withholding liar. But yet, they did not properly put the credibility issues to Mr Parkins. That is a mandatory requirement in law. You must put to the applicant questions of credibility if credibility is going to be the basis of making an adverse decision. This is in addition to the questions of fact, alleged misapplications of statutory powers and other grounds of appeal as specified.
Again, I say the latent bias is self-evident in the decision records of the CSA and SSAT. Whilst there is one line in the SSAT decision at page 10 where the Presiding Member asserts “on paper” that the Mortgage lender’s documentation does not form a basis for the decision, the “foul odour” of credibility remains unanswered. Once the CSA had tarnished the credibility of Mr Parkins with allegations of withholding information, it is an environment of “ruined reputation” which Mr Parkins could not recover without the opportunity to put rebuttal and reply against such allegations.
This was not done by CSA or SSAT.
Devices such as this are well known to me. I know what it is like to have incontrovertible evidence against me that was only resoundingly answered by Prasad Directions and Statutory Fines against the Police totaling $50K. It is only in such ways that justice may find expression.
It is therefore in cases such as this that it is my aspiration that precedents such as Parkins may be established to restore dignity to the act of statutory taxation based recoveries of moneys, not for the ingratiation of self-serving bureaucrats to abuse process by lawful means into a de facto system of male punishment, but to use the system for what it is there to achieve: the valid orderly collection of moneys for parents and guardians on behalf of their children for necessities of life.
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To read the article about the fraudulent use of incomes by mortgage brokers click here.