Bixby & Farraday (SSAT Appeal)
[2009] FMCAfam 647
•30 June 2009
MAGISTRATES COURT OF AUSTRALIA
| BIXBY & FARRADAY (SSAT Appeal) | [2009] FMCAfam 647 |
| CHILD SUPPORT – Application for extension of time to appeal from decision of SSAT. CHILD SUPPORT – Appeal from decision of SSAT – error of law – presumption of parentage – interpretation of word “cohabited” for s.29(2)(h), Child Support (Assessment) Act 1989. CHILD SUPPORT – Appeal from decision of SSAT – error of law – SSAT’s jurisdiction conditional on applicant having a right to object to the Registrar’s decision and having exercised that right – no right of objection against a decision by the Registrar to accept an application for administrative assessment “on the ground that the person is not a parent of the chid concerned” – objection by applicant on ground that Registrar misinterpreted a provision of the Child Support (Assessment) Act 1989 in being satisfied that applicant is a parent of the children concerned – whether applicant had right to object – whether objection “on the ground that the person is not a parent of the chid concerned” – whether right to apply to SSAT to review objection decision. WORDS AND PHRASES – “cohabited”. |
| Child Support (Registration and Collection) Act 1988 ss.80, 87(1), 89, 100(1), 103A(1), 103S(1), 110B, 110F Child Support (Assessment) Act 1989 ss.5, 6, 7, 29, 30, 106A, 107 Family Law Act 1975 ss.4AA, 69Q, 69W Federal Magistrates Court Rules 2001 r.25A.06(2) |
| Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 Australian Family Law, Butterworths, pp.1247, 1344.2 |
| Applicant: | MR BIXBY |
| Respondent: | MS FARRADAY |
| File Number: | LEC 163 of 2009 |
| Judgment of: | Halligan FM |
| Hearing date: | 25 June 2009 |
| Date of Last Submission: | 25 June 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 30 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Counsel for the Respondent: | There was no appearance by or for the respondent |
| Solicitor for the Child Support Registrar: | Mr McWhinney appeared for the Child Support Registrar as amicus curiae |
ORDERS
The time in which the applicant may appeal against the decision of the Social Security Appeals Tribunal made on 19 January 2009 is extended to 25 March 2009.
The applicant’s appeal against the decision of the Social Security Appeals Tribunal is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bixby & Farraday is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
LEC 163 of 2009
| MR BIXBY |
Applicant
And
| MS FARRADAY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 July 2008, the Child Support Registrar (the Registrar) accepted an application from the respondent mother for an administrative assessment of child support (“child support application”) for her twin children in relation to her and the applicant. The applicant unsuccessfully objected to the Registrar against his decision to accept the mother's application on the basis that the Registrar misconstrued provisions of the Child Support (Assessment) Act 1989 (the Assessment Act) in being satisfied that the applicant was the father of the twins. The applicant then unsuccessfully applied to the Social Security Appeals Tribunal (SSAT) to review the Registrar’s decision on the same grounds.
The applicant now applies to this Court for an extension of time in which to appeal from the decision of the SSAT, and if successful, appeals against that decision, seeking to argue that the SSAT made an error of law in its interpretation of the relevant provision of the Assessment Act in confirming the Registrar’s decision that the applicant is the father of the twins.
Despite being served with the applicant’s documents, the mother did not participate in the proceedings. The Registrar did not intervene in the proceedings but was represented in the proceedings and addressed submissions to the Court as amicus curiae.
While various powers and decisions to which I will refer repose in the Registrar, they are in fact exercised or made by his delegates working within the Child Support Agency (CSA). I will refer to the Registrar and the CSA interchangeably in these reasons.
The facts
The following facts are derived from the decision of the SSAT and from the SSAT file provided to the Court for the hearing of this application and appeal, which itself includes the file provided by the CSA to the SSAT for the determination of the application for review made to it.
On 7 July 2008, the mother applied to the CSA for an administrative assessment of child support for her twins on the basis that the applicant is their father. On 25 July 2008, the applicant opposed the mother's application contending that he did not live with the mother in a “genuine domestic relationship”. On 25 July 2008, the CSA accepted the mother's application, being satisfied that the applicant is the father of the twins.
In coming to this decision, the CSA had to construe and apply to the facts of which the CSA was satisfied the provisions of s.29(2)(h) of the Assessment Act, which I will set out later in these reasons.
The applicant objected to the CSA against the decision to accept the mother's application. The CSA advised the applicant that his objection was invalid because of the provisions of s.80(4) of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), which precludes an objection on the ground that the person is not a parent of the child concerned.
According to the Objection Decision of the Registrar’s delegate, the applicant sought to dispute this decision with the CSA on
9 September 2008, and was advised he could apply for a declaration under s.107 of the Assessment Act that he should not be assessed in respect of the costs of the child because he is not a parent of the child.
Then on 23 September 2008, the SSAT contacted the CSA, and both “found that the objection lodged by (the applicant) on 18 August 2008 was valid as he was questioning the type of (proof of parentage) used, not just saying that he is not the father.”
The CSA then proceeded to determine the applicant’ objection. Both parties put to the CSA factual material about their sharing accommodation and the circumstances under which they did so. It seems there was no issue that the applicant and the mother were sharing accommodation and had a sexual relationship for a period that fell within the period specified in s.29(2)(h), and that when doing so they were holidaying together. The applicant argued that these facts did not establish that he and the mother were cohabiting “in a genuine domestic relationship” and hence failed to meet the requirements of any paragraph in s.29(2).
The applicant’s objection was rejected on 17 October 2008. The letter under cover of which the objection decision was sent to the applicant advised him he could appeal to the SSAT within 28 days. He did so, on 3 November 2008.
The decision of the SSAT
On 28 January 2009, the SSAT, having conducted a hearing of the applicant’s review application on its merits, rejected the application and reaffirmed the Registrar’s decision to accept the mother's child support application. In its reasons, the SSAT identified its task as follows:
“14.The evidence of both parties was generally consistent with the evidence they had previously given to the (Child Support) Agency. There was no dispute that the parties had a sexual relationship and a friendship. (The applicant) maintains that he did not cohabit with (the mother). The inquiry into whether a person is a “cohabitant” under the Act is ultimately a fact-sensitive determination that requires the Tribunal to make findings of fact, on a case-by-case basis, in reaching its conclusion.
15.Ultimately resolution of the dispute before the Tribunal will require statutory interpretation and specifically analysis of the definition of cohabitation when applied to the overall objective of the Child Support Legislation.”
The SSAT found the following facts:
a)The mother gave birth to twins in 2008.
b)The applicant and the mother had a sexual relationship between 22 August 2007 and 29 October 2007, “which is a period of time beginning 44 weeks and ending 20 weeks before the twins were born”. This latter statement is literally incorrect. The former date was 43 weeks before the birth of the twins and the latter date was between 32 and 33 weeks before the twins’ birth. However, the reference to this time frame of between 44 and 20 weeks before the twins’ birth and references in the SSAT’s reasons to s.29(2)(h) clearly indicate that what was meant was that the period of cohabitation fell within the period beginning 44 weeks and ending 20 weeks before the twins’ birth.
c)The applicant and the mother had previously lived in a sexual relationship between December 2006 and April 2007 which ceased due to international work commitments of the applicant and the mother.
The SSAT recorded in its reasons that the applicant’s case was that he travelled to Thailand on 22 August 2007 to meet the mother and commence a holiday together, which ended when the mother returned to Australia on 29 October 2007. They travelled together and shared the same holiday plans including trips, meals, entertainment and hotel room. As the SSAT expressed it in its reasons for decision (at [22]), the applicant did not dispute that he and the mother were in a sexual relationship together for the relevant period for s.29(2)(h). Rather, he disputed that they “cohabited” within the meaning of s.29(2)(h) because there was no “genuine domestic relationship” or “de facto relationship”.
The SSAT also recorded in its reasons that the applicant refused to accept or deny that he is the father of the children and “refuses to have a DNA test”.
In addressing the applicable law, the SSAT said in its reasons that prior to accepting the mother's child support application against the applicant, the Registrar “must be satisfied of proof of parentage (POP)”, which “is assessed with reference to the criteria in section
29 of the Act”. The SSAT then said (reasons, [20])-
“Section 29 does not seek to make a definitive conclusion on paternity. These are findings that can only be made with DNA testing and approval of the Court. In the absence of DNA evidence, section 29 is used by the Registrar to ascertain POP and a determination is made on whether such proof is sufficient to accept an application for assessment.”
The SSAT, referring to s.5 of “the Act”, observed that “cohabitation” is not defined. However, s.5 of the Assessment Act is not the only source of definitions of terms used in it. By ss.6 and 7 of the Assessment Act, expressions used in the Assessment Act and in the Registration and Collection Act or the Family Law Act have the same respective meanings as in those Acts unless the contrary intention appears. Neither “cohabited” nor any derivative of that word is defined in the Assessment Act, the Registration and Collection Act or the Family Law Act. “De facto relationship” is now defined in the Family Law Act 1975 (s.4AA), although that definition was inserted after the SSAT decision.
In the absence of a statutory definition of “cohabited”, the SSAT discerned the meaning of “cohabited” in s.29(2)(h) by recourse to the Macquarie Dictionary 3rd Edition, and the definition therein of “cohabitation” as “to live together in a sexual relationship”, noting that the definition contained no temporal qualifications. The SSAT also noted as significant the phrase in s.29(2)(h) “at any time”, deriving from that phrase the suggestion that there does not need to be a permanent arrangement, it being “sufficient that a sexual relationship existed at the relevant period”. The SSAT was satisfied that the applicant and the mother cohabited during the relevant period for s.29(2)(h). The SSAT regarded the fact they did so while on an overseas holiday as irrelevant.
If in saying that it is “sufficient that a sexual relationship existed at the relevant period” the SSAT was suggesting that a sexual relationship without more is sufficient to prove the parties “cohabited”, in my view the SSAT would be wrong at law. However, in reviewing decisions of administrative bodies and tribunals, a court should not be “concerned with looseness in language nor with unhappy phrasing”, and “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291). In light of the foregoing, when the SSAT’s reasons are looked at as a whole, I am satisfied that the SSAT did not mean that the existence of a sexual relationship was all that was needed to find parties “cohabited”. The definition the SSAT adopted - “to live together in a sexual relationship” - taken with the reference to facts beyond a mere sexual relationship in expressing satisfaction that the applicant and the mother cohabited, satisfies me that this phrase does not fully reflect the approach in fact adopted by the SSAT.
The extension of time application
The applicant filed his application to extend time within which to appeal against the decision of the SSAT on 8 April 2009, having filed a Notice of Appeal against that decision on 25 March 2009.
The time in which the applicant could appeal to this Court from the decision of the SSAT expired 28 days after receiving written notice of the decision of the SSAT (r.25A.06(2), Federal Magistrates Court Rules 2001 (FMCR)). The decision of the SSAT is dated 28 January 2009. The applicant says he did not see the notice of decision until 27 February 2009, he being away from his home between 21 January and 27 February 2009.
Assuming that the notice of decision of the SSAT was posted to the applicant on the day it was made and reached the applicant’s home in the ordinary course of post, it is likely the notice reached the applicant’s home on the New South Wales North Coast around 30 January 2009 or 2 February 2009. He had until around 27 February or 1 March 2009 to file his appeal. He would thus have been less than four weeks out of time.
His unchallenged evidence, which I accept, is that he travelled to Brisbane on business on 21 January 2009, expecting to be away for between one and two weeks, but for unexplained reasons was unable to return home and access his mail until 27 February 2009.
The mother did not participate in the proceedings to oppose what the applicant sought. I am satisfied that an extension of time would not prejudice the mother. I am also satisfied that the applicant’s explanation of delay is satisfactory, albeit he fails to explain why he could not return home as originally intended.
But before the Court would extend time in which to appeal, it would need to be satisfied that there are reasonably arguable grounds on which the appeal could succeed. This raises the substantive merits of the appeal, and in the circumstances, I decided to hear full submissions from the applicant and the Registrar on the appeal itself, and to determine the appeal on its merits.
The appeal
The applicant’s right of appeal arises under s.110B of the Registration and Collection Act, which provides:
“110B 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.”
The point of law on which the applicant appeals is the same one he raised in his objection and in the appeal to the SSAT, that is, that the provisions of s.29(2)(h) have been misinterpreted.
Section 29(2)(h) provides-
“(2)The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
…
(h) that the person is a man and:
(i) the child was born to a woman who cohabited with the man at any time during the period beginning 44 weeks and ending 20 weeks before the birth; and
(ii) no marriage between the man and the woman subsisted during any part of the period of cohabitation.”
Before me, the applicant submitted that “cohabited” as used in s.29(2)(h) of the Assessment Act means “lived together in a married like relationship (de facto marriage) for at least six months” (sic). He said he derived this definition from the definition of “cohabitation” in the Australian Government Family Assistance Policy Guide, Version 1.113, released on 2 March 2009.
I also raised with the applicant and the solicitor for the Registrar whether the original decision of the CSA to reject the applicant’s objection under s.80(4) may have been correct, and if so, whether the SSAT had jurisdiction to entertain an application to review the objection decision.
I will deal with the appeal ground raised by the applicant first, then consider whether s.80(4) precluded the applicant’s objection, and if so, the consequences for this appeal.
Was the SSAT wrong in law in its interpretation of s.29(2)(h)?
As mentioned, in the absence of a statutory definition of “cohabited”, the SSAT had recourse to a dictionary definition and adopted it. It held that “cohabited” meant lived together in a sexual relationship.
To succeed in his appeal, the applicant must show that the construction of the word “cohabited” as used in s.29(2)(h) adopted by the SSAT was wrong at law. The application of that definition to the facts as found by the SSAT is an entirely separate issue.
Section 29(2)(h) was first inserted into the Assessment Act by the Child Support Legislation Amendment Act 1995. The period of cohabitation then required was “for a period of at least six months before the birth” that “included the time 10 months before the birth”. The paragraph used the terms “cohabited” and “cohabitation”. In the Minister’s Second Reading speech, the amendments to s.29(2) then being effected were explained thus:
“1. Presumptions of parentage
The bill brings the presumptions of parentage in the Child Support (Assessment) Act 1989 into line with the presumptions used in the Family Law Act 1975.
…
Aligning the child support presumptions of parentage with those of the Family Law Act will streamline the administrative arrangements in place between the Child Support Agency and the Department of Social Security. Currently, many custodial parents who apply for child support are required to obtain a birth certificate or a statutory declaration from the father. This can take months, and causes needless hardship to children and custodial parents deprived of support during this period. It can also create substantial arrears of child support for the non-custodial parent when the necessary proof is obtained, causing his or her liability to be backdated to the time the application was made. The administrative delays associated with obtaining this paperwork have contributed to significant criticism of the scheme. This amendment will largely remove this problem.”
Section 29(2)(h) was amended to its present form by the Child Support Legislation Amendment Act (No 1) 1996. The purpose of that amendment was to mirror amendments to equivalent presumption of parentage provisions of the Family Law Act. Section 29(2)(h) is in the same terms as s.69Q, Family Law Act.
I was not referred to, and have been unable to find, any decisions on the meaning of “cohabited” or its derivatives as used in s.29(2)(h), or in s.69Q (formerly s.66Q) of the Family Law Act.
The version of the Family Assistance Policy Guide referred to and quoted from by the applicant in his affidavit was not put into evidence before me. The version of that Guide currently on the relevant Commonwealth Government web site is version 1.117, released on 1 June 2009 (at Part 1 of this Guide contains “Key Terms and Principles”. Section 1.1 contains definitions of “key terms”, including a definition of “cohabitation”. However, the definition of “cohabitation” does not appear alone. It appears under the heading “cohabitation, living together”, and the full entry is as follows:
“Definition: cohabitation
The term 'cohabitation' refers to living together in a married-like relationship (defacto marriage) rather than just sharing accommodation.
When a separated couple recommence living together, they are considered to be 'cohabiting' in situations where the couple intended to resume their relationship, even if this intention only lasted a brief time.
Definition: living together
The term 'living together' rather than 'cohabitation' is used in the application for a child support assessment, as this is a more commonly used expression.
Decision about living together
For the purposes of establishing presumption of parentage, it is the responsibility of the individual, not FAO (Family Assistance Office) staff, to decide if they and the named parent of the child were living together. FAO staff do not need to:
· apply the FA Act criteria for marriage-like relationships, or
· make a decision about whether a person was in a marriage-like relationship.”
When the whole of this entry is considered, it at best raises serious doubts about, and at worst directly contradicts, the interpretation contended by the applicant, as it clearly indicates that “living together” is used for the presumption of parentage decisions in the context of child support, and that this does not entail considerations whether the couple were in a marriage-like relationship. However, that does not necessarily provide the proper meaning of “cohabited” as used in s.29(2)(h).
As mentioned, s.29(2)(h) is in the same terms as s.69Q of the Family Law Act. The learned authors of Australian Family Law (“the Butterworths Practice”), suggest (at p.1344.2) that cohabitation in the context of s.69Q “has the same meaning that it has in the context of divorce”, with a reference to the commentary on ss.48 – 50. No authority is cited for this proposition. The commentary in relation to the term “cohabitation” in the context of divorce suggests (at p.1247) that “parties to a marriage are ‘cohabiting’ when the marital relationship (‘consortium vitae’) exists, and are separated when it does not”. Thus, in the context of divorce, the Butterworths Practice suggests “cohabitation” is synonymous with the marital relationship, and it would seem the authors of the Butterworths Practice are suggesting that “cohabited” as used in s.69Q means a marriage-like relationship.
Similarly, the learned authors of Australian Family Law and Practice (“the CCH Practice”) suggest (at p.14,263) that “cohabited” as used in s.69Q “almost certainly means living together in a relationship similar to that of husband and wife”. The authorities cited in support of this proposition (Maddock v Beckett, (1961) Tas SR 46 at 50; Re Fagan, Deceased, (1980) 23 SASR 454 at 464, (1980) 5 Fam LR 813 at 822 – 3) relate to interpretation of cohabited or derivatives of that word in contexts unconnected with parentage. Nonetheless, Jacobs J in Fagan, when considering the word cohabit in the phrase “cohabiting with (a person) as the husband or wife de facto of that other person” for the purpose of deciding if a person was the putative spouse of another under State legislation, observed that the primary meaning of “cohabit” is simply “to dwell with, or live together”. Even in the context of determining whether a person was the putative husband or wife de facto of another, his Honour declined to import into the phrase “cohabit as husband and wife de facto” some or all of the criteria of a common law marriage, that is, of a de facto marriage, such as holding out of the de facto spouse as a wife or a husband, or of a monogamous relationship in the sense of cohabiting with the putative spouse to the exclusion of all others.
The meaning of “cohabitation” was considered by Sangster J in
Clift & Clift, (1976) 2 Fam LR 11,369, where his Honour had to consider the meaning of the term in the context of a divorce application, and determine whether the spouses had resumed “cohabitation”. His Honour said (at 11,372):
“‘Cohabitation’ means, literally, ‘living together’, or, when used in such a context as a statute dealing with matrimonial relationships, ‘living together as man and wife’.”
Thus, both Jacobs J in Fagan and Sangster J in Clift suggest that, absent a statutory definition, “cohabit” primarily means to dwell with or live together, but that this basic meaning may be added to or qualified consistent with the legislative context in which the word is used. In my view, cohabitation or the cessation thereof for the purposes of a divorce application, or cohabitation for the purposes of determining whether or not a couple were in a de facto relationship, is not necessarily the same as cohabitation for the purposes of drawing inferences as to parentage of a child, because of the differing legislative contexts and purposes.
The purpose of the presumption of parentage provisions of the Assessment Act, and of the Family Law Act on which they are based, is not to determine whether there is the presence or absence of a marriage or a de facto relationship between a couple, but to determine whether it is likely that a person is a parent of a child.
It is trite law that a marital relationship may subsist even when the spouses are not physically living under the same roof. It is also trite that the existence of a sexual relationship is neither necessary to the existence of a marital relationship, nor alone indicative of such a relationship. The same applies to a de facto relationship. Yet it would seem that the existence of a sexual relationship at the relevant time would be a crucial element of the “cohabitation” contemplated by s.29(2)(h) as justifying a presumption of parentage. This in my view raises real doubts about the relevance of definitions of cohabitation in statutory contexts unconnected with the determination of parentage.
In my view, the context in which, and purpose for which, “cohabited” is used in s.29(2)(h) supports the interpretation adopted by the SSAT. If the Legislature had intended that the presumption of parentage should only arise if the couple were living together in a marriage-like relationship, it could have said so. Where the ordinary meaning of a word is not inconsistent with the context or purpose of the legislative provision in which it is used, that is the appropriate meaning to be ascribed to the word.
I am therefore satisfied that the interpretation of the word “cohabited” adopted by the SSAT, namely “living together in a sexual relationship”, is the correct interpretation of the term as used in s.29(2)(h) of the Assessment Act, and no error of law arose in the SSAT adopting this definition.
If the only issue in this appeal was whether there was an error of law in the SSAT’s conduct of the merits review, the appeal would fail. However, I am concerned that there is another issue of law that arises, to which I earlier adverted, namely whether the SSAT had jurisdiction to conduct a merits review. I now turn to consider this issue.
Was the SSAT wrong in law in exercising jurisdiction
A person may apply to the SSAT to review a decision of the Registrar, inter alia, if the decision is made under s.87(1) of the Registration and Collection Act on an objection to a decision of the Registrar (s.89(1), Registration and Collection Act). The decision under s.87(1) is a decisions to disallow or to allow, in whole or in part, an objection lodged “under this Part”, that is, under s.80.
If the decision sought to be reviewed was not made in the determination of an objection under s.80, the applicant had no right to seek review of the decision by the SSAT. The issues to be addressed, therefore, are-
·Did the applicant have a right under s.80 to object to the Registrar’s initial decision?
·If not, did the SSAT lack jurisdiction to entertain the applicant’s review application on its merits?
Did the applicant have a right under s.80 to object to the Registrar’s initial decision?
The initial decision of the Registrar in this case, to accept an application for administrative assessment of child support under s.30(1) of the Assessment Act, is a decision against which a person who is to be assessed in respect of the costs of the child - in this case, the applicant - may object (s.80(1) and Item 9 of the Table in that subsection, Registration and Collection Act).
However, as already mentioned, s.80(4) circumscribes this right to object if the basis of the objection is that the objector “is not a parent of the child concerned”. Section 80(5) contains a similar restriction on the right to object to a decision by the Registrar not to accept an application for an administrative assessment of child support where a basis for the decision was a failure to be satisfied as to parentage under s.29(2) of the Assessment Act. The two provisions are as follows:
“(4) An objection to a decision of the Registrar to accept an application for administrative assessment under subsection 30(1) of the Assessment Act may not be lodged on the ground that the person is not a parent of the child concerned.
Note:In that case, a person may be able to apply to a court under section 107 of the Assessment Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child.
(5) An objection to a decision of the Registrar to refuse to accept an application for administrative assessment may not be lodged if one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of a child is a parent of the child concerned.
Note:In that case, the applicant may be able to apply to a court under section 106A of the Assessment Act for a declaration that the applicant is entitled to administrative assessment of child support for the child.”
The interpretation of s.80(4) contended for by the Registrar was that a challenge to the Registrar’s application of s.29(2) in deciding whether to be satisfied that a person is a parent of a child is different to the ground referred to in s.80(4), and hence an objection about the way the Registrar has interpreted or applied s.29(2) in being satisfied a person is a parent of a child may be made under s.80, despite subsection(4).
It may be argued that such a construction is supported by the fact that unlike s.80(5), s.80(4) makes no explicit reference to s.29, thus raising a dichotomy between the application of s.29 and an issue as to parentage. However, I doubt any such dichotomy exists.
A person may be aggrieved by a decision to accept a child support application on parentage grounds whether or not s.29(2) is properly construed and applied. Section 29(2) establishes presumptions as to parentage. It does not entail any definitive determination of parentage. That can only be achieved through court action under s.106A or s.107 of the Assessment Act, a fact the SSAT acknowledged in its reasons (at [20]).
In my view, s.80(4) is capable of application whenever a person is aggrieved by a parentage decision under which a child support application is accepted, whether or not he or she contends the Registrar misapplied s.29(2). Parentage is the sole issue to which s.29(2) is directed. Whether s.29(2) is correctly applied or not, if the Registrar accepts a child support application his decision is based on being satisfied the aggrieved person is a parent of the child concerned. A challenge to that decision, however arrived at, is a challenge to a decision that the aggrieved person is a parent of the child. To challenge the decision as to parentage, the aggrieved person must be contending they are not the parent of the child concerned. That is the very ground referred to in s.80(4).
The situation in the present case is that absent the statutory presumption of parentage under s.29(2)(h) or a determination of parentage by a court, the applicant would not be regarded as the father of the children. It is only by the application of the presumption that the applicant is regarded as the father of the children. If the applicant contends the presumption under s.29(2)(h) has been misapplied to him, he is contending he is not the father of the children for the purposes of the mother's child support application.
I therefore am inclined to the view that s.80(4) applies to preclude an objection seeking to challenge a parentage decision of the Registrar, whether or not the parentage decision is said to flow from a misapplication of s.29(2). However, the legislative scheme of which s.29(2) and s.80(4) are part should inform any final decision.
It was submitted on behalf of the Registrar that the interpretation contended for was consistent with a legislative intent to have child support issues primarily dealt with by administrative processes rather than court processes. It was also said to be consistent with a legislative intent that child support obligations should be dealt with promptly, inexpensively and informally. It was submitted that these legislative purposes would be frustrated by a construction of s.80(4) that excluded all parentage related issues arising from a decision to accept or refuse a child support application from the administrative review procedures.
To illustrate his submission, the solicitor for the Registrar referred to the document based presumptions of parentage, including s.29(2)(b), that the Registrar may be satisfied a person is a parent of a child if the person’s name is entered on a child’s birth certificate as a parent of the child. He put that if the Registrar accepted a child support application on the assertion of the applicant that the other person’s name was on the child’s birth certificate, and the other person subsequently sought to challenge that decision by producing the child’s birth certificate to disprove the contention in the application, it would be unduly onerous, costly and productive of unnecessary delay if the Registrar could not entertain an objection, receive the birth certificate, and reverse the original decision.
However, this scenario does not accurately reflect the application of the Assessment Act by the Registrar or fully acknowledge the powers of the Registrar. The solicitor for the Registrar conceded that-
a)The Registrar notifies the other party when a child support application is received and gives the other party an opportunity to dispute the basis of the application. If this is done, in the scenario outlined above, the other party could dispute the particulars said to be on the birth certificate, and the Registrar would then require the applicant to produce the birth certificate before making a decision to accept or refuse the application. Thus while the Registrar (rightly or wrongly) does make parentage decisions on document based presumptions without sighting the document on which the presumption arises in some cases, he does not do so where he is able to contact the other party and an issue about parentage is raised.
b)Even if the Registrar accepted an application on a document based presumption of parentage without sighting the actual document that gives rise to the presumption, the Registrar could reverse that decision at any subsequent time if the actual document were produced and was inconsistent with the basis of the parentage decision, whether or not the situation fell within s.80(1).
In G & H, (1993) 16 Fam LR 525 at 534, (1993) FLC 92-380 at 79,942, a case concerning the inferences to be drawn when a person failed to comply with a parentage testing order made under s.66W (now s.69W) of the Family Law Act, Fogarty J said:
“Paternity is now a medical and not a legal issue. Society is entitled, through the legislature and the Courts, to an inexpensive, prompt and virtually certain procedure to decide this question. Paternity is no mere inter partes issue. The child and society have a vested interest in the correct outcome. The reasons for that are many, including heredity, the sense of identity and the private and public obligation of financial support directly relevant in this case and so emphasized by the legislature over the past decade.”
The need for a speedy and authoritative resolution of issues of parentage, and the reasons for that need, are highlighted both in the Second Reading speech on the amendments to the Assessment Act that inserted s.29(2)(h) (above) and the comments by Fogarty J in G & H (above). While the comments of Fogarty J in G & H were made long before the significant legislative amendments that radically changed the processes for review of decisions made by the Registrar to significantly restrict court involvement in the process, the reference to the need for an inexpensive, prompt and virtually certain procedure to decide parentage questions remains apposite, and is consistent with what the solicitor for the Registrar submitted was the legislative intent of the provisions I am considering.
That purpose in my view is not achieved by an objections and review process that cannot authoritatively determine the issue of parentage. It can be achieved under the s.107 (and s.106A) declaration process.
On the construction of s.80(4) suggested by the Registrar, even after a decision of the Registrar finding parentage established under s.29(2) has been the subject of an objection, a review by the SSAT, an appeal on a point of law, and perhaps even an appeal to the Full Court of the Family Court of Australia, regardless of the ultimate decision the issue of parentage still remains amenable to determination in s.106A or s.107 proceedings (depending on the final outcome of the administrative review process), subject to the time limit for such applications and an extension of that limit if expired.
The unsatisfactory results that flow from the contentions of the Registrar that the interpretation and application of s.29 should be separated from the result of its application are well illustrated by this case. Despite the applicant not contending he is not the father of the children, or suggesting he has any bona fide basis for doubting he is their father, there has now been both an internal and an external administrative review of the initial decision to accept the mother's child support application, and an appeal to this Court. If there is no genuine basis for doubting the applicant’s paternity, that is, if the applicant does not dispute that he is the father of the twins, or at least entertain a reasonable doubt as to his paternity, this process is vexatious and oppressive of the mother and productive of delay and uncertainty about the parties’ child support obligations, to say nothing of the waste of public funds. If he does dispute, or entertain reasonable doubts about, his paternity of the twins, then s.80(4) clearly applies, and his proper remedy was to seek a declaration under s.107.
The administrative review process, including an appeal from the decision of the SSAT to this Court, cannot authoritatively resolve any issue about the parentage of the twins. It is only in court proceedings under s.107 that a court can, if appropriate, invoke the parentage testing provisions of s.69W of the Family Law Act to assist it to authoritatively resolve any genuine parentage issue. Before those provisions may be invoked by a court however, the court must be satisfied that an applicant for parentage testing has “an honest, bona fide and reasonable belief” as to a doubt about parentage
(Duroux & Martin, (1993) 17 Fam LR 130 at 135, (1993) FLC 92-432 at 80,407). There is thus protection against unwarranted challenges to parentage, and the court can with or without a parentage testing procedure authoritatively determine the issue of parentage.
Section 80(5) precludes an objection under s.80(1) to a decision to refuse to accept a child support application if a reason for a refusal was that the Registrar was not satisfied under s.29 that a person was a parent of the child concerned. If an unsuccessful applicant contends that the Registrar’s parentage decision was based on a misapplication of s.29, it would seem the subsection still applies to preclude an objection under s.80(1), with the appropriate remedy being to seek a court declaration under s.106A. The solicitor for the Registrar agreed this was the effect of the provision.
Thus, on the construction suggested on behalf of the Registrar, a person wishing to challenge a decision of the Registrar to accept a child support application because of a suggested misapplication of the parentage presumptions under s.29(2) would have recourse to both the administrative review procedures and to the court via the s.107 declaration procedure. On the other hand, a person wishing to challenge a decision of the Registrar to reject a child support application because of a suggested misapplication of the parentage presumptions under s.29(2) would not have recourse to the administrative review processes, and would only have recourse to the s.106A declaration procedure. Why it would be intended to create this difference is not apparent.
In my view, the intention of s.80(4) and (5) is to prevent precisely the situation illustrated by this case, and to remove disputes about parentage decisions of the Registrar from the formal administrative review process. In my view, their intent is to require that parentage issues affecting a decision by the Registrar to accept or reject a child support application be brought to a court under s.106A or s.107 so they can be authoritatively determine without undue delay.
This is not to suggest that an unsuccessful applicant for child support could not make a further application based on further evidence, for example, accompanied by a document relevant to a document based presumption of parentage. Nor is it to suggest that the Registrar is precluded from considering further relevant information received after accepting a child support application, and if warranted by the further information, for example a document showing a prior document based presumption of parentage decision was wrong, from changing the earlier decision. However, in my view that would not be treated as an objection under s.80(1) because of s.80(4), and hence the decision would not be amenable to a merits administrative review by the SSAT.
Accordingly, I am satisfied that if the applicant wished to challenge the Registrar’s decision to accept the child support application on the basis that he should not be regarded as the father of the children for any reason, including a misapplication by the Registrar of s.29(2), s.80(4) precluded him doing so via the objections procedure under Part VII of the Registration and Collection Act.
Did the SSAT lack jurisdiction to entertain the applicant’ review application?
As there was no right under s.80 to object to the Registrar’s decision on the ground raised by the applicant, the applicant had no right to apply to the SSAT to review that decision under s.89. The SSAT thus had no jurisdiction to entertain and determine the applicant’s application for review on its merits, and its decision to do so involved an error of law.
Determination of appeal and formulation of appropriate relief
The powers of the court on an appeal from the SSAT are to make such order as it thinks appropriate, including but not limited to an order affirming or setting aside the SSAT decision or remitting the case to be heard and decided by the SSAT again (s.110F, Registration and Collection Act). The orders must flow from the findings made by the court in the appeal.
The Executive Director of the SSAT may in certain circumstances, including on being satisfied the decision sought to be reviewed was not reviewable by the SSAT, dismiss the application for review (s.100(1), Registration and Collection Act). If the Executive Director does not dismiss an application, he or she must fix a date and time for the hearing of the application for review before the SSAT (s.103A(1), Registration and Collection Act). The powers of the SSAT in determining an application for review are to affirm the decision being reviewed, to vary the decision, or to set the decision aside and either substitute a new decision or send the matter back to the Registrar to decide again (s.103S(1), Registration and Collection Act).
The decision of the SSAT as recorded in its reasons was to affirm the Registrar’s decision.
The effect of my findings is that while the Registrar had the option of considering the applicant’s objection, the objection did not fall within s.80(1), as it was excluded by s.80(4). Thus, it was not a decision that was reviewable by the SSAT. The SSAT should have dismissed the application. That would have left the Registrar’s decision the subject of the application for review in place. That is the result in fact achieved by the purported confirmation of the decision by the SSAT.
It is open to the court to set aside the decision of the SSAT. However, that would leave the applicant’s application for review unresolved. The court could remit the matter to the SSAT to be decided again, but that would only be to dismiss the application for review. Whether the court on an appeal from the SSAT can substitute a new decision for that of the SSAT is a matter not argued before me, and about which there may be real contention.
In the circumstances, bearing in mind that the applicant failed on the point of law he raised, and that no order I make on this appeal in relation to the point of law on which I am satisfied the SSAT fell into error will alter the Registrar’s decision to accept the mother's child support application, I propose to dismiss the appeal.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 30 June 2009
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