Byrne & Graham (SSAT Appeal) - [2010] FMCAfam 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYRNE & GRAHAM & ANOR (SSAT APPEAL)

[2010] FMCAfam 1116

CHILD SUPPORT – Appeal from decision of SSAT Executive Director.

Administrative Appeals Tribunal Act 1975, ss.3, 20B(1), 24A(1), 44, 42A,
Child Support (Assessment) Act 1989, ss.43, 56, 57, 98C, 98L,117
Child Support (Registration and Collection) Act 1988, ss.28A, 89, 94, 101(5)(c), 110B
Social Security (Administration) Act 1999, cl. 10 of Sch 3

Simon v SSAT Executive Director [2010] FMCA 373
Toohey and Tax Agents' Board [2009] AATA 142

Appellant:

MR BYRNE

First Respondent:

MS GRAHAM

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

DGC 4714 of 2007

Judgment of:

Riethmuller FM

Hearing date:

21 July 2010

Date of Last Submission:

21 July 2010

Delivered at:

Melbourne

Delivered on:

11 October 2010

REPRESENTATION

Counsel for the appellant:

The appellant appearing in person

Counsel for the First Respondent:

Ms Buchanan of Counsel

Solicitors for the First Respondent:

Victoria Legal Aid

Counsel for the Second Respondent:

Mr Hannan of Counsel

Solicitors for the Second Respondent:

Australian Government Solicitors

ORDERS

The appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Byrne & Graham & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 4714 of 2007

MR BYRNE

Appellant

And

MS GRAHAM

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

The appellant is the father of two children, N and J, born February 1999 and November 2001, respectively. From 2 July 2008 he has been assessed to pay child support to the respondent, who has the care of the children. The case was mutually registered with the Child Support Agency (‘CSA’) for assessment of child support only, with payments to be made privately between the parties.
On 25 August 2009 the respondent requested the CSA to collect child support from the appellant, saying that the appellant was then three months in arrears. An officer from the CSA then contacted the appellant on 31 August 2009. The appellant advised that he had not paid child support since January 2009 as he did not agree with the administrative assessment that was then in force. The CSA determined that it ought to collect the child support, together with arrears, for a period of three months prior to the date that the respondent had requested that the Agency commence collection. Those arrears totalled $3,828.19. (Presumably, this decision was made pursuant to s.28A of the Child Support (Registration and Collection) Act 1988, which limits the registration for collection of arrears to three months, save in exceptional circumstances.)
On 23 July 2009 a delegate of the Registrar, acting under Part VIA of the Child Support (Assessment) Act 1989, significantly increased the child support payable by the appellant. He objected to this decision, and an objection decision was made on 30 October 2009. The objection decision altered the original decision but continued a significant child support assessment. The result was a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCAfam 1116
Decision Date

CaseChat Overview and Summary

Byrne & Graham (SSAT Appeal) involves the question of whether the appellant has a right to appeal against a decision made by the Executive Director of the Social Security Appeals Tribunal (SSAT). The dispute revolves around the interpretation of the relevant statutory provisions that outline the appeal mechanisms for decisions made by the SSAT. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the Executive Director's decision falls within the scope of decisions appealable under section 110B of the Child Support (Registration and Collection) Act. Specifically, the court had to determine if the Executive Director's decision, which was not made by a member of the SSAT conducting a review, qualifies as a decision of the SSAT as defined in the Act. This interpretation hinged on the specific wording and context in which the term "SSAT" was used in the legislation, and whether it included decisions made by the Executive Director outside of a formal review process.

The court examined the statutory language and the context in which the SSAT was defined. It noted that the SSAT is constituted by a specific member for the purpose of conducting a review, and that the appeal provisions relate to decisions made by a member nominated for this purpose. The court found that the Executive Director’s decision, which did not involve a member conducting a review, did not fall within the definition of a decision of the SSAT as contemplated by the Act. Consequently, the court held that there was no right of appeal under section 110B for the Executive Director's decision. The court also noted that the only remaining avenue for review would be to seek judicial review of the Executive Director’s decision.

The court's decision clarifies that the Executive Director's decision in this case does not constitute a decision of the SSAT for the purposes of an appeal under the relevant legislation. Therefore, the appellant's right of appeal under section 110B does not apply.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The difficult question that arises in this case is whether or not there is in fact a right of appeal by the appellant against such a decision of the SSAT Executive Director. Section 110B of the Registration and Collection Act provides:110B [Appeals from decisions of SSAT]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. (emphasis added) The Act does not define the term “SSAT” other than to point out that it is an abbreviation for the term Social Security Appeals Tribunal. In the Social Security (Administration) Act 1999, a definition is given of the term SSAT in the context of conducting a review, in clause 10(2) of Schedule 3 of the Act:10 [Constitution of SSAT for each hearing](1) Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of: (a) a particular review; or (b) reviews of a particular kind. (2) Without limiting subclause (1), the Principal Member may give a direction under that subclause as to the member who is, or members who are, to constitute the SSAT for the purposes of all reviews, or reviews of a particular kind, that are listed for hearing at a particular place during a particular period or during particular periods. (3) For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1). (emphasis added) Importantly, in clause 10(1) of the schedule, it is made clear that the Principal Member may give directions as to the member/s who would constitute the SSAT for the purpose of a particular review:10 [Constitution of SSAT for each hearing](1) Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of(a) a particular review; or(b) reviews of a particular kind.(emphasis added) It is argued before me that the Executive Director’s decision is not a decision of the SSAT as contemplated by the Child Support (Registration and Collection) Act and therefore, there is no appeal available under the relevant provisions. The only right of review that would remain would then be for the appellant to seek judicial review of the Executive Director’s decision. It seems clear that the SSAT must be constituted by a specific member for the purpose of conducting a review. The appeal provisions relate to decisions of a member nominated for the purpose of conducting their review. In this case, the proceedings had not reached that point, but the Executive Director had exercised various other powers under the Act. Those powers do not appear to be the subject of the appeal provisions or review by the Tribunal. This view is one that has been argued extrajudicially by Halligan FM in a recent paper ('Appeals from SSAT child support decisions', A paper for the Legal Aid NSW Child Support Service seminar series, 27 July 2010) where his Honour said:[36] The Executive Director may also summarily dismiss an application to the SSAT for review (except one made by the Registrar). One ground on which the Executive Director may summarily dismiss an application is that “the decision is not reviewable under this Part [VIIA]”. This is a decision that must necessarily involve a question of law, going to the jurisdiction of the SSAT. However, as the decision is not a decision of the SSAT, it would seem that there is no right of appeal under s.110B. Nor is any right conferred on a person affected by the decision to seek review in the AAT. (emphasis added)

Ratio Decidendi

Legal Principle Established

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