Aames and Aames and Anor (SSAT Appeal)
[2013] FMCAfam 189
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AAMES & AAMES & ANOR (SSAT APPEAL) | [2013] FMCAfam 189 |
| CHILD SUPPORT – Leave to appeal out of time sought – two years out of time – no real explanation of delay – no question of law shown – decision by SSAT is pursuant to child support agreement. |
| Child Support (Registration and Collection) Act 1988, s.103W Federal Magistrates Court Rules 2000, r.3.05 |
| Gallo v Dawson [1990] HCA 30 |
| Applicant: | MS AAMES |
| First Respondent: | MR AAMES |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 7650 of 2012 |
| Judgment of: | Coates FM |
| Hearing date: | 19 October 2012 |
| Date of Last Submission: | 19 October 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 14 March 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the First Respondent: | Self represented |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
That the Notice of Appeal (Child Support) filed 24 August 2012 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Aames & Aames & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7650 of 2012
| MS AAMES |
Applicant
And
| MR AAMES |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Leave to appeal a Social Security Appeals Tribunal (the SSAT) decision, two years out of time, is sought by the applicant mother.
Rule 3.05 of the Federal Magistrates Court Rules 2000 makes this a discretionary decision.
The rule states:
“3.05 Extension or shortening of time fixed
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order.
(2) A Registrar may extend or shorten a time fixed by these Rules.
(3) The time fixed may be extended even if the time fixed has passed.
(4) A time fixed by these Rules or by a judgment, decree or order for service, filing or amendment of a document may be extended by consent without an order.”
The Notice of Appeal does not state grounds, but refers to the following as the grounds:
“1. Family Law Rule 24.03
2. Division 13.01, 13.04
3. Division 13.2.1, 13.07(a) (b) and circumstances beyond my control.”
By way of background:
a)On 10 February 2010 the SSAT made a decision;
b)The decision was made pursuant to s.103W of Child Support (Registration and Collection) Act 1988;
c)The decision gave effect to a child support agreement between the parties;
d)The only method of setting aside the agreement is the appeal process;
e)The agreement was for a period 27 April 2009 to 31 December 2010; and
f)Since 31 December 2010, the respondent father’s assessment has been subject to formula assessment under the child support acts – this appeal is not then concerned with the current state of assessment.
I determined from the applicant that upon being granted leave out of time, she wants the decision of the SSAT set aside.
I had the benefit of submissions from herself and the solicitor for the second respondent, the Child Support Registrar, Mr Foley.
Mr Foley stated, without objection, that the applicant is complaining about the process and the level of assessment, for the period stated.
I find that to be the case.
Before assessing whether the two year old decision ought to be set aside, according to relevant considerations, to understand what occurred, I need to state the section the decision was made under, in full.
The decision was made pursuant to s.103W of the Child Support (Registration and Collection) Act 1988, which states:
“s.103W Powers of SSAT if parties reach agreement
(1) If, at any stage of a proceeding for a review (including at a pre-hearing conference under section 103):
(a) the parties (other than the Registrar) agree to the terms of a decision of the SSAT:
(i) in the proceeding; or
(ii) in relation to a part of the proceeding, or a matter arising out of the proceeding;
that would be acceptable to the parties; and
(b) the terms of the agreement are:
(i) put in writing; and
(ii) signed by or on behalf of the parties; and
(iii) lodged with the SSAT; and
(c) the SSAT is satisfied that a decision in those terms, or consistent with those terms, would be within the powers of the SSAT;
the SSAT may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
Note: The SSAT cannot make a decision that the Registrar could not have made (see subsection 103T(2)).
(2) If the agreement reached is an agreement as to the terms of a decision of the SSAT in the proceeding, the SSAT may make a decision in accordance with those terms:
(a) without holding a hearing of the proceeding; or
(b) if a hearing has commenced--without completing the hearing.
(3) If the agreement relates to a part of the proceeding, or a matter arising out of the proceeding, the SSAT may in its decision in the proceeding give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part or matter to which the agreement relates.
(4) The SSAT must not make a decision by consent under subsection (2) or (3) in relation to a departure from administrative assessment of child support in accordance with Part 6A of the Act unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters set out in subsections 117(4) and (5).”
The applicant claims an unfairness, in that the Child Support Agency did not inform her of relevant matters relating to its decisions on child support and objections to decisions, made during 2009. However, she does not say when she became aware that the Agency had sent her otherwise relevant correspondence, although she admits that she did not keep the Agency informed of her changes of address.
She also states that she was unaware of the respondent father’s earnings from a company, and that this was due to his non-disclosure.
Part of her case is based on child support the respondent father pays for his other children of a different relationship, at rates greater than being paid for the applicant mother’s child. That situation occurred because the SSAT actually heard a case with regard to the mother of the other children and the father, and determined his income at the material time was about $440,000 annually.
The respondent father wants the decision set aside but for different reasons. His submissions did not explain what he sought, but he is now a bankrupt and claims no capacity to pay extra child support. Although he did not file material, it was accepted that he is a bankrupt.
The Child Support Registrar opposes the application to grant leave out of time and to the setting aside of the decision, on the basis that no grounds are made out for the granting of leave and there is no identification of the question of law which would have to be considered before the decision could be set aside. On reading carefully both Notice of Appeal and the evidence, that would appear to be the case. As well, what realistically may or can be gained from allowing the appeal and remitting it to the SSAT cannot be ignored and as the mother stated, she does not know what she wants, she just wants a fair share of child support – as she believes is being distributed to children of the father from another relationship.
The grounds of appeal then would seem to be that the mother was denied procedural fairness in the manner in which the SSAT made its decision. There also seems to a claim against the Child Support Agency for not informing the mother of its decisions.
In examining the facts alleged by the mother, I cannot see how I am to consider the SSAT performing its duty under s.103W as a denial of procedural fairness.
The applicant mother states that she came to an agreement with the respondent father and although she now claims that she did not receive certain materials, that is because she did not keep the relevant authority informed of a change of address.
However, even if I was to accept that the respondent father had not made full and frank disclosure to the applicant, and even if I had a satisfactory explanation of why the delay has been two years, I have to consider the law applicable to this type of discretionary decision in allowing leave out of time.
Mr Foley referred me to the case of Gallo v Dawson [1990] HCA 30, which gives guidance as to the exercise of the discretion to allow the appeal out of time. McHugh J stated:
“The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
Mr Foley summarised the considerations as being:
a)The history of the proceedings;
b)The conduct of the parties;
c)The nature of the litigation;
d)The consequences for the parties of the grant or refusal of the application; and
e)The prospects of success of the proposed appeal.
As to the mother’s position, it was her case that she:
a)As to the history, although she came to an agreement with the father, such was done before she had full disclosure from him;
b)That the SSAT acted in a manner contrary to her interests by not informing her of anything;
c)That it should have been apparent to the SSAT in dealing with the father’s other children that her child would suffer prejudice.
I am satisfied from considering the relevant history in the affidavit of Ms S, a lawyer with the Department of Human Services, which identifies the correspondence sent to the mother that it was the mother’s own inaction of failing to inform of a change of address. I am satisfied that there were also telephone conversations regarding the child support in dispute, so I will draw an inference that the mother was not completely unaware of issues, as she claims, before the decision of the SSAT was made. Further, that the Agency can produce records material to this issue indicates that all of their duties were being discharged.
I am also satisfied that there may well be a difference between what the father was to pay for his other children, at the time, and what he was to pay for the child of this relationship.
That in itself does not indicate a question of law in the decision. It merely indicates that the mother of the father’s other children chose to seek child support utilising a different method.
The SSAT, pursuant to its powers under s.103W, made its decision on the material before it. Had the mother kept the Child Support Agency notified of her address, the SSAT would not have attempted to contact her at addresses they held on their records which were not being used by the mother.
This goes to conduct, as identified in the Gallo decision. On the basis of the test in Gallo, I am not satisfied the applicant has satisfied the requirements to allow a proper exercise of the discretion.
But even if there was satisfactory evidence that she was not informed of relevant information for reasons outside her control, I need to consider again, carefully, whether she has identified a question of law. None is apparent from her application and none is apparent from her oral or documentary evidence. A matter I raised then becomes important – what is the possible outcome if I set the decision aside and remit the matter back to the SSAT?
The matter comes down, in my view, to what McHugh J identified in Gallo v Dawson, that “it is always necessary to consider the prospects of the applicant succeeding in the appeal”.
There was no dispute before me that the father is now in bankruptcy, even though he produced no evidence of such. There is no dispute he wants the decision set aside, but I could not determine the real purpose of that.
But I could not see evidence of how remitting that matter now, two years after the decision was made, would put the mother in the same position with regard to receiving child support payments as she thinks the mother of the father’s other children would be in. I did not have before me the child support decisions for those other children ordered pursuant to the SSAT decision on them, although I was told that there are matters before the Child Support Agency about that particular child support liability.
This is a discretionary matter, discretion indicating that there is a choice between alternative decisions. However, when the meaning of the words of McHugh J in Gallo v Dawson are applied, there must at least be some prospect of success apparent on the evidence before the court. I can understand that the mother wants a fair outcome, one which is obviously the same or similar to the decision which saw the father’s income set at $440,000 for his other children, but it is more than merely setting his income level, there must be some prospect apparent that the mother’s child would receive an equivalent amount of child support for the period in question and that there had been a mistake raising questions of law.
The mother claims that the SSAT has not complied with the objects of the child support legislation, but her view is wrong. The SSAT was entitled to take into account the agreement the parties reached under s.103W, which it did.
The mother then had the opportunity to bring an appeal in a reasonable time in order to set the decision aside. That she did not has not been explained by her. But even if it is the case that she did not know some things at the time, the barrier I am facing is that there is no evidence on which I could set the current agreement aside or that a re-hearing of the matter by the SSAT now would, for the period claimed 27 April 2009 to 31 December 2010, gain actual payment of the increase in child support which she seeks.
Reluctantly, I will dismiss the matter.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate:
Date: 14 March 2013
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