Benson and Benson and Anor (SSAT Appeal)
[2014] FCCA 2398
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENSON & BENSON & ANOR (SSAT APPEAL) | [2014] FCCA 2398 |
| Catchwords: CHILD SUPPORT – Appeal from decision of SSAT – error of law – jurisdictional error – prescribed non agency payment arising under section 71C of the Child Support (Registration & Collection) Act – payment sought to be credited made by liable parent in respect of leasing and fuelling payment arising from a vehicle being purchased by him – whether payment made amounts to a costs to the payee of obtaining and running a motor vehicle – SSAT has failed to consider issue – jurisdictional error established – decision quashed – matter remitted for rehearing. |
| Legislation: Child Support (Registration & Collection) Act 1988, ss.30; 71C; 101; 110B; 10D; 110G; |
| Repatriation Commission v Owens (1996) 70ALJR 904 Neal v Secretary, Department of Transport (1980) 3 ALD 97 Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 LDME & JMA [2007] FMCAfam 712 Apthorpe v Repatriation Commission (1987) 13 ALD 656 Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280 Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services |
| Applicant: | MS BENSON |
| First Respondent: | MR BENSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | ADC 981 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 3 September 2014 |
| Date of Last Submission: | 3 September 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | In Person |
| Counsel for the Second: Respondent: | Mr Swan |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The decision of the Social Security Appeals Tribunal dated 4 February 2014 be set aside.
The matter be remitted to the Social Security Appeals Tribunal to be heard in accordance with law.
IT IS NOTED that publication of this judgment under the pseudonym Benson & Benson & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 981 of 2014
| MS BENSON |
Applicant
And
| MR BENSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Security Appeals Tribunal (“the SSAT”). It concerns the operation of section 71C of the Child Support (Registration & Collection) Act 1988 (Cth) (“the Registration Act”).
Section 71C deals with circumstances in which a payment, other than a direct payment of money, can be regarded as discharging a child support liability. Such payments are invariably referred to as “non-agency payments”, in the sense that they are not paid to the Child Support Agency itself but rather to other third parties.
Pursuant to section 110B of the Registration Act, the only ground on which an appeal to this court can lie, from a decision of the SSAT is “on a question of law”.
These proceedings relate to whether the SSAT correctly applied section 71C and a regulation related to it, regulation 5D of the Child Support (Registration & Collection) Regulations 1988 (Cth) (“the Collection Regulations”) which provides an exhaustive list of payments, which are to be taken as being non-agency payments.
The parties to these proceedings are Ms Benson (“the payee and applicant”) and Mr Benson (“the payer and first respondent”). They are the parents of [X], who was born on [omitted] 2007.
The second respondent to the appeal is the Child Support Registrar (“the Registrar”). Pursuant to section 101 of the Registration Act, the Registrar is a party to review proceedings before the SSAT. As such, he has standing in the current proceedings by virtue of section 110D of the Act.
The payer (Mr Benson) and the payee (Ms Benson) separated in July of 2010. Since that time, [X] has lived exclusively with Ms Benson and spent no time whatsoever with Mr Benson. As such, Ms Benson is deemed to have 100% care and cost of [X]. This is relevant to how child support for [X] is assessed.
On 11 February 2011, Ms Benson applied for an administrative assessment of child support, in respect of [X], which was to be payable to her by Mr Benson. This assessment was registered with the Department of Human Services – Child Support (“the Agency”) for collection, from this date.
As a consequence of this action, when child support was calculated as being due to Ms Benson, it created what is known as an enforceable maintenance liability, which is collectable, by the Agency pursuant to the provisions of section 30 of the Registration Act on the basis that it constitutes a debt to the Commonwealth.
At the time of the parties’ separation, Mr Benson was employed as an [omitted], by [Q] (“[Q]”). As part of his remuneration, with [Q], he was entitled to purchase a motor vehicle through a salary sacrifice arrangement operated by the company and its employees.
As a consequence of these entitlements, Mr Benson elected to purchase a Mercedes Benz motor vehicle, through the [Q] Motor Vehicle Scheme (“the Scheme”). When Ms Benson separated from Mr Benson, she used this vehicle to travel from Melbourne, where she and Mr Benson had previously lived, to Adelaide, where she chose to live with [X].
Thereafter, Ms Benson retained the Mercedes Benz motor vehicle, which she utilised for her own and [X]’s domestic travel purposes. This appeal turns on legal considerations relating to payments which Mr Benson paid to [Q], relating to that vehicle, which, in practical terms, benefitted Ms Benson because she had the use of the vehicle and the implication of those payments for child support purposes.
Background
There is no dispute that, at all material times, the motor vehicle in question was owned by [Q]. However, as part of deductions made from his salary, Mr Benson paid the cost of leasing the vehicle from [Q] and payments in relation to fuel consumed by the vehicle, by means of a fuel card account related to it.
After the parties separated, Mr Benson paid a sum of $8,128.48 in respect of lease payments and petrol payments, relating to the Mercedes Benz motor vehicle, which Ms Benson utilised. Between 15 March 2011 and 15 July 2011, Mr Benson applied to the Agency to have these monies credited as non-agency payments of child support.
There is no dispute that the payments were made by Mr Benson, by direct deduction from his salary, and were made to third parties and not directly to Ms Benson. It is also agreed that Mr Benson had entered into the agreement with [Q], regarding the purchase of the Mercedes Benz, prior to his separation from Ms Benson and it had been agreed between the parties that Ms Benson would utilise the vehicle, as would he, from time to time.
When Ms Benson left Victoria, with [X], she travelled to South Australia in the Mercedes Benz and, during all relevant times, had the exclusive use of the vehicle. She objected to the Agency crediting any payments relating to the vehicle, against the enforceable maintenance liability arising as a consequence of her application for child support, on the basis that she had never agreed that these amounts should be in lieu of child support. Rather Mr Benson, without any reference to her, had unilaterally determined that they should be, which she regarded as fundamentally unfair.
Between 23 March 2011 and 16 August 2011, the Agency accepted that the various sums, paid by Mr Benson in respect of the motor vehicle, should be entered against the enforceable maintenance liability, relating to [X], as non-agency payments.
On 11 June 2013, Ms Benson objected to the payments being credited in this way. Ms Benson also applied for an extension of time in which to lodge her objection. This extension was granted and the matter referred back to the Agency for an internal review.
On 29 October 2013, an objection officer allowed Ms Benson’s objection and determined not to accept the payments as prescribed non-agency payments. As a consequence of this decision, Mr Benson sought to review the matter in the SSAT, which heard the matter on 30 January 2014.
On 12 February 2014, the SSAT determined as follows:
“The Tribunal sets aside the decision under review and, in substitution, decides that the payments made by Mr Benson on 15 March 2011, 15 April 2011, 15 June 2011 and 15 July 2011 should be credited as prescribed non-agency payments.”
It is this decision, which is the subject of these proceedings, which
Ms Benson commenced on 19 March 2014. Mr Benson seeks the dismissal of the appeal. The Registrar was joined as a party to the proceedings on 7 May 2014.
The Grounds of Appeal
Ms Benson amended her notice of appeal on 18 June 2014. She seeks the following orders:
“1. Pursuant to section 110F(2) of the Child Support (Registration & Collection) Act 1988 the decision of the SSAT dated 12 February 2014 be set aside.
2. Pursuant to section 71D of the prescribed non agency payments are not credited.
3. Such further or other orders as this Honourable Court deems fit.”
Ms Benson has acted on her own behalf throughout these proceedings. As such, she has drafted her own grounds of appeal, which can be summarised as follows:
“1. That there is no basis for the registrar to have credited the payments made by Mr Benson, in respect of the Mercedes Benz vehicle, as prescribed non-agency payments.
2. The Tribunal failed to properly exercise the discretion conferred upon it pursuant to section 71D of the Registration Act.
3. The SSAT failed to accord her procedural fairness.”
The Decision of the SSAT
The SSAT found that Mr Benson had made the payment in question to [Q], by way of deductions from his salary. It further found that
Ms Benson had had the use of the Mercedes Benz vehicle, at relevant times. No exception is taken by either party to these central findings of fact by the SSAT.
In this context, the SSAT firstly considered whether the payments in question could be credited towards Mr Benson’s child support liability pursuant to the provisions of section 71A of the Registration Act. In essence, section 71A allows a payment, made to a third party, to be credited by the registrar against an enforceable maintenance liability if, both the payer and the payee intended the payment in question to be one referrable to child support. Essentially the parents concerned must agree that a payment to a third party is to be captured as a child support payment.
In this context, the SSAT made the following finding.
“The legislation states very clearly the intention that the payment is made in lieu of any amount payable under an enforceable maintenance liability must be by both the payer and the payee. However, it is clear from the evidence of Mr Benson and
Ms Benson that the intention did not exist at the time of the payment. No discussion was entered into, according to their evidence to the Tribunal, at the time of separation or at the time the payments were made that these payments would be made as if they were child support payments. Mr Benson stated that
Ms Benson’s retention of the vehicle constitute an agreement that the payments were in lieu of child support but the Tribunal does not accept that Ms Benson’s use of the vehicle is sufficient to satisfy the requirements under section 71 of the Act. There is simply no way that this was the mutual intention of the parties as there was never any discussion between the parties about these payments. Consequently they were not a payment made in lieu of child support and the payments claimed by Mr Benson cannot be credited as a non-agency payment under this section.”[1]
[1] See the SSAT decision at paragraph 23
The question of whether there was or was not any agreement between the parties, regarding the use of the motor vehicle post their separation, is a question of fact. It is not a matter of law. In any event, it does not appear to be Mr Benson’s position that he challenges this finding of fact, namely that he and Ms Benson did not mutually agree that the Mercedes Benz lease and petrol payments were to be offset against his future child support liabilities.
Thereafter, the SSAT turned its attention to the application of section 71C of the Registration Act, which reads as follows:
“1) If:
(a) the payer of an enforceable maintenance liability in relation to a payment period or initial period has made one or more payments to the payee of the liability, or to another person; and
(b) the payment is a payment of the kind specified in the regulations; and
(ba) at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and
(c) the sum of those payments exceeds the sum of all such payments previously credited under this section against the amount payable under the liability for all past periods; and
(d) the payer does not, at the time at which the Registrar applies this section, have at least regular care of any of the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit the excess amount mentioned in paragraph (c) against the amount payable under the payer's liability for the period, up to a maximum of 30% of the amount payable.”
In the context of section 71C the SSAT noted that it was not necessary for there to be a mutual intention to credit a payment made to a third party, by a liable parent, if the payment in question satisfied the criteria provided by the section, particularly that the payment fell within the list of payments prescribed by the regulations.
The applicable regulation is regulation 5D, which reads as follows:
“For paragraph 71C (1) (b) of the Act, specified payments are payments of the following kinds:
(a) child care costs for the child who is the subject of the enforceable maintenance liability;
(b) fees charged by a school or pre-school for that child;
(ba) amounts payable for uniforms and books prescribed by a school or pre-school for that child;
(c) fees for essential medical and dental services for that child;
(d) the payee's share of amounts payable for rent or a security bond for the payee's home;
(e) the payee's share of amounts payable for utilities, rates or body corporate charges for the payee's home;
(f) the payee's share of repayments on a loan that financed the payee's home;
(g) costs to the payee of obtaining and running a motor vehicle, including repairs and standing costs.”
The SSAT found that in order to credit a prescribed non-agency payment, under section 71C, no mutual intention of the parties was necessary. It further found that, as Mr Benson had no care of [X], this amounted to less than regular care and therefore the provisions of section 71C(1)(ba) were met.
In this context, the SSAT considered that the essential issue, in the case, related to the application of regulation 5D(g) to the circumstances of the case, particularly whether the payments made by Mr Benson, from his [Q] salary, amounted to “costs to the payee of obtaining and running a motor vehicle, including repairs and standard costs.”
The Tribunal made the following findings of fact, in respect of this issue.
“The Tribunal finds that the arrangements for the vehicle were entered into in 2008 prior to Mr and Ms Benson separating. The vehicle was leased through salary packaging with Mr Benson’s employer [Q] and there are payslips which confirm the payment of the costs associated with the vehicle. This packaging included a lease payment, maintenance costs, insurance and registration costs and fuel.
There is no dispute that when Mr Benson and Ms Benson separated that Ms Benson took the vehicle for her own exclusive use and the Tribunal finds accordingly. Prior to separation, both Mr and Mrs Benson stated that the car was used jointly, although there was no agreement as to how much use each of them had during this period.
The Tribunal finds that the costs of the vehicle, which includes the lease payments, are costs to the payee of obtaining and running the vehicle. The vehicle was obtained for the use of Ms Benson prior to separation and Ms Benson continued with the use of the vehicle after separation. The lease payments for the vehicle are an integral component of the arrangements entered under the salary package agreement and cannot be separated. Put another way, Ms Benson could not use the vehicle if the lease payments were not maintained and paid for by Mr Benson then the use could not continue. Therefore the Tribunal finds that these payments cannot be separated from the other costs to the payee of obtaining and running the vehicle.”[2]
[2] See SSAT decision at paragraphs 35-37
The nature and legislative basis of appeals to this court from the SSAT
The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 5 of Part 7A of the Registration Act, in particular section 110B, which reads as follows:
“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Registration Act. Pursuant to section 110F of the Registration Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
·affirm or set aside the decision of the SSAT; or
·remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.
The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 has significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.
The intent evinced by the legislature, in limiting any appeal from the SSAT to a question of law, is to ensure that the merits of the case are dealt with not by this court but by the SSAT. The High Court has characterised “this distribution of function [as] critical to the correct operation of the administrative review process.”[3]
[3] See Repatriation Commission v Owens (1996) 70ALJR 904
Accordingly, pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.
As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.
The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Registration Act. The court may make a finding only if the following two provisos are satisfied:
·Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.
·It is convenient for the court to make such findings of fact. [4]
[4] See Child Support (Registration and Collection) Act 1989 at section 110G(1)
Pursuant to section 110G(2), for the purpose of making such findings of fact, the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependent upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal.
Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the expectation advanced by any appellant that an error of law will thus be demonstrated.
Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law,[5] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[6]
[5] See Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100 per Franki J and Comcare v Etheridge [2006] FCAFC 27 at paragraph [14] per Branson J.
[6] See Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J.
It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision. Essentially, it is not the function of this court to reappraise the evidence led before the SSAT and re-determine the case, according to the conclusions it draws from the available evidence.
As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”. [7]Rather I should take a common sense approach to what the SSAT was saying in its decision and the reasons why it did said what it said. The function of the SSAT is not to produce reasons of “jurisprudential excellence”.[8] It is to provide an informal and expedient level of independent review.
[7] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258
[8] See LDME & JMA [2007] FMCAfam 712
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
·fails to construe properly the legislative provisions applicable;
·identifies the wrong issues or asks itself the wrong questions;
·ignores relevant material or relies on irrelevant material;
·fails to accord procedural fairness to the party before it;
·makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[9]
[9] See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002:[10]
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
[10] Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 at 61
In Collector of Customs v Pressure Tanker Pty LtdandPozzolanic Enterprises Pty Ltd,[11] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[11] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
In summary, an appeal on a question of law:
·is not a review on the merits or a rehearing;
·as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;[12]
·however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Circuit Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.
[12] See LDME & JMA [2007] FMCAfam 712 at paragraph 29
In brief terms, the requirement that a hearing be procedurally fair requires the decision making tribunal concerned to apply the rules of natural justice. There are two traditional rules of natural justice. Firstly, the hearing rule which requires a decision maker to hear a person before making a decision which affects the interests of that person. Secondly, the bias rule which provides for the disqualification of a decision maker where doubts arise as to the actual or perceived impartiality of the decision maker concerned.[13]
[13] See Aronson & Dyer: Judicial Review of Administrative Action (2nd Edition) 2000 LBC Information Services at p.300
Conclusions
This appeal turns on a narrow point. Did the SSAT misconstrue the provision contained in regulation 5D(g) and thus fall into jurisdictional error. Both Ms Benson, and counsel for the Registrar, Mr Swann, contend that it did. Mr Benson argues otherwise.
In this context, it is useful to summarise the submissions of Mr Swann, which Ms Benson adopts. Mr Swann submits that the evidence, as found both by the SSAT and supported by documents, which were before the Tribunal, indicate that the Mercedes Benz motor vehicle was leased through a salary sacrificing arrangement between Mr Benson and [Q], to which Ms Benson was not a party.
The [Q] Motor Vehicle Guidelines indicated that vehicles subject to the Guidelines are owned by [Q]. The Guidelines apply only to [Q] employees, which have been provided with approval to purchase an executive motor vehicle. However, [Q] employees may permit another person to use the vehicle in question. In this context, it is the responsibility of the custodian to determine the type and extent of general use. However the employee in question remains liable for any monies to be paid as a consequence of the Guidelines.
Following the parties separation, there is no dispute that Ms Benson had exclusive use of the Mercedes Benz vehicle. She herself did not make any payments to [Q]. This is because only Mr Benson and [Q] were parties to the agreement arising pursuant to the [Q] executive motor vehicle guidelines. As such, only Mr Benson was responsible for such payments. No obligations fell on Ms Benson, notwithstanding her use of the motor vehicle with Mr Benson’s ostensible consent.
In these circumstances, Mr Swan submits that the SSAT fell into error in considering that the payments made by Mr Benson personally, for the Mercedes Benz vehicle, fell within the remit of those described in regulation 5D(g) particularly in that they were not costs to the payee ( that is Ms Benson) directly of obtaining and running a motor vehicle. Axiomatically they were payments which fell upon the payer (that is Mr Benson).
Mr Swan submits as follows:
Regulation 5D provides that payment of certain “costs” may be a “prescribed non agency payment” and directs attention to two characteristics of those costs:
a) They must be costs “to the payee”;
b) The costs (to the payee) are limited to those that constitute “obtaining and running a motor vehicle.
The use of the phrase “to the payee” in regulation 5D(g) directs attention to the person(s) with responsibility for those costs. For costs to fall within the sub-paragraph, the payee must have an actual obligation or liability to meet them (be it because he or has directly or indirectly incurred them, or for some other reason.[14]
[14] See Registrar’s written submissions at [17] – [18]
In this context, Mr Swan submits that the Tribunal has not specifically alluded to this issue in it decision. It has not considered whether the costs of both leasing and fuelling the Mercedes Benz motor vehicle were “costs” to Ms Benson. As such, it has misconstrued regulation 5D(g) and fallen into jurisdictional error.
I agree with this contention. In addition, the evidence available to the SSAT indicates that Ms Benson did not have any liability for making the lease and fuel payments in question. It seems to have assumed that because she had the use of the motor vehicle in question that it fell within the scope of regulation 5D(g). In my view, this conclusion was erroneous.
The meaning of regulation 5D(g) is a matter of statutory construction. The regulation speaks specifically of costs to the payee. Payee is defined in section 4(1) of the Registration Act as being the person entitled to receive payments under a registrable maintenance liability. There is only one possible payee in the context of this case and it is
Ms Benson.
Accordingly, on a plain reading of the regulation, the costs of the leasing of the Mercedes Benz motor vehicle are not costs to
Ms Benson. They are costs to Mr Benson. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue the High Court said as follows in respect of how legislative provisions are to be interpreted:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself… The language which has actually been employed in the text of legislation is the surest guide to legislative intention.”[15]
[15] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47
It seems to me that the only feasible conclusion available, following a plain reading of the text of the applicable regulation, is that for the costs of the motor vehicle in question to be a prescribed non agency payment, arising from the use of a motor vehicle, they must be costs otherwise liable to be paid by a payee of child support rather than a payer of child support.
Mr Benson is clearly the payer of the applicable child support referrable to these proceedings. I appreciate that Mr Benson is liable to think that this outcome is very unfair to him, as he also undoubtedly has paid the monies referrable to the motor vehicle, which Ms Benson has utilised.
However, these proceedings are not directed to ascertaining what is the fair result. The SSAT remains the relevant finder of fact in the case. In reaching its conclusions, as to matters of fact, in my view, it has failed to consider relevant considerations arising under the applicable regulatory regime. As such, it has failed to exercise the jurisdiction conferred upon it.
For these reasons, I will order that the relevant decision of the SSAT be set aside and the matter be remitted for fresh consideration.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 24 October 2014
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