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 child support assessment of around $14,088 per annum.
As a result the appellant lodged two applications for review to the Social Security Appeals Tribunal (‘SSAT’), both on 19 November 2009:
a)an application with respect to the decision of the CSA setting his rate of child support at a sum in excess of $14,000 per annum. This application was given the number MC234012; and
b)an application for review of the objection decision to accept the application for the CSA to collect the child support payments on behalf of the mother. This application was given the reference number MC234014.
From this point onwards the SSAT dealt with both applications as separate files. It appears from the appellant’s submissions that, in his mind, the two matters were intertwined and would be dealt with together.
Two letters acknowledging the respective applications were sent by the SSAT on 24 November 2009, with the respective reference numbers at the top right-hand corner, but by the same case manager.
On 23 December 2009 the case manager wrote to the appellant, advising of a pre-hearing conference in application MC234012 (the departure application) at 9.30 am on 12 January 2010, and that a hearing had been scheduled in the matter MC234014 (the collection application) on Thursday, 4 February 2010 at 11 am.
On 11 January 2010 an officer from the SSAT contacted the appellant to confirm his attendance at the pre-hearing conference in the first matter.
On 12 January 2010 the parties were notified that a hearing in the departure matter had been scheduled for 12 March 2010 at 9.30 am. On the same day the appellant was notified in writing of the directions made at the pre-hearing conference, and specifically advised:
Failure to comply with directions made by the Tribunal can result in:
· a party being removed as a party to the appeal (and they would take no further part in the process), or
· dismissal of the appeal.
The directions were detailed, covering a little over two pages, providing directions for how the hearing would proceed and for the disclosure of various documents to the Tribunal by 2 February 2010 by each of the parties.
On 3 February 2010, the Tribunal, not having received any of the documents requested of the appellant, wrote to the appellant notifying him of his non-compliance and extending the time for compliance to Wednesday, 10 February 2010. The Tribunal again pointed out:
It is open to the Tribunal to direct that you be removed as a party to this appeal because of your failure to comply with the Tribunal’s directions. This could mean that your appeal will be dismissed or decided without your further participation.
On 4 February 2010 the Tribunal conducted the hearing with respect to the second matter (MC234014 – the collection decision). On 17 February 2010 the Tribunal determined to refuse the application with respect to the collection decision, providing six pages of reasons.
On 12 February 2010 an officer of the SSAT telephoned the appellant with respect to file MC234012 (the departure decision file), returning a telephone call that he had made to the Tribunal on 11 February at

2.32 pm where he had left a message advising he had received the non-compliance letter but was not sure what it meant. The appellant says that he was unable to receive this message from his voicemail until after close of business on the 12 February 2010.
It appears that late on the day, on 12 February 2010, the appellant was removed as a party, and the respondent contacted the Tribunal. As the respondent did not wish to continue with the application the appeal was dismissed. A letter notifying the appellant of this was also sent on

12 February, relying upon section 101(5)(c) of the Child Support (Registration and Collection) Act.
On 15 February the appellant rang the SSAT concerning the dismissal of the application. He explained that he was confused as to the date the documents were due, believing that a letter which advised that any other documents would need to be provided at least 14 days before the hearing date meant that he had until that time to provide any documents. The file note on the Tribunal’s file includes the statement that:
I advised that as the appeal was dismissed the Tribunal could not look at the matter again and that he may wish to seek legal advice or contact the Federal Magistrates Court.
In summary, the appellant’s case is that he was confused as a result of the various items of correspondence being similar with respect to both matters, and with respect to the instructions contained therein, which led him to fail to comply with the directions through error and that he ought to be given an opportunity to have his matter reinstated before the SSAT.

The Law

The right to apply to the SSAT for a review of a decision of the Registrar is provided for in s.89 of the Child Support (Registration and Collection) Act. The method of commencing a review is set out in s.94.
Section 101(5) makes provision for the Executive Director (a provision that has since been amended to refer to the SSAT Principal Member) to direct that a party to a review no longer be a party if:
(c) the party fails to comply with a direction or order of the SSAT or of the executive director given in relation to the review.
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)
In the explanatory memorandum for the Child Support (Registration and Collection) Act, amendments of the jurisdiction of the courts to deal with appeals from the SSAT provides:
Once a review is finalised by the SSAT, a parent who remains dissatisfied may appeal to a court on a question of law. Although not express, the provisions may be interpreted as confining the jurisdiction of such courts constituted by judges. It is intended that such appeals may be heard by the Federal Magistrates Court and … (emphasis added)
In this case, no review was conducted.
A similar issue arises in the Administrative Appeals Tribunal (‘AAT’). Section 44 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) provides an applicant with a right to appeal the Tribunal’s decision in the Federal Court of Australia.
44 [Appeals to Federal Court of Australia from decisions of the Tribunal]
Appeal on question of law
(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (emphasis added)
…
The AAT does not have an Executive Director: It has the President who manages the Tribunal’s administrative affairs (s.24A(1) of the AAT Act). Under s.20B(1) of the AAT Act, the President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding.
The AAT Act defines the term ‘Tribunal’:
3 [Interpretation]
"Tribunal" :
(a) means the Administrative Appeals Tribunal established by this Act; and
(b) in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c) includes a member, or an officer of the Tribunal, exercising powers of the Tribunal. (emphasis added)
Section 3(c) of this definition extends the definition of ‘Tribunal’ to officers, whereas no equivalent appears in the Social Security (Administration) Act 1999 nor the Child Support (Registration and Collection) Act.
Having looked at the definition of ‘Tribunal’ in s.3 of the AAT Act, Deputy President SA Forgie, in Toohey and Tax Agents' Board [2009] AATA 142 stated at para [16]:
Therefore, when s 44(1) provides that “A party to a proceeding before the Tribunal may appeal ... from any decision of the Tribunal in that proceeding”, the reference to the “Tribunal” is to be read as a reference to the Tribunal as constituted for the purposes of the proceeding i.e. in accordance with (b) of the definition. The same could be true when the word “Tribunal” is used in s 44(5) in so far as it is used to identify the decision in relation to which the Federal Court may make certain orders. Section 44(5) also uses the word on a second occasion when conferring power on the Federal Court to remit the case to be heard and decided again by the Tribunal. That is a use of the word “Tribunal” without reference to a “proceeding” as that term is defined in s 3(1). On its face, it would seem that it should be understood as a general reference to the Administrative Appeals Tribunal established by the AAT Act i.e. in accordance with (a) of the definition. (emphasis added)
Whilst this indicates some flexibility in reading the term ‘Tribunal’ it would not support imputing the equivalent of s.3(c) of the ‘Tribunal’ definition in the AAT Act to the SSAT.
Section 42A of the AAT Act provides a power to dismiss an application where the applicant has failed to comply with the Tribunal’s direction:
42A [Discontinuance, dismissal, reinstatement etc. of application]
…
Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction
(5) If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision. (emphasis added)
The dismissal power in the AAT Act is conferred upon the Tribunal and not an Executive Director or the President, unlike the provision in the Child Support (Registration and Collection) Act. As a result little assistance can be gained by comparing the relevant AAT Act and Social Security (Administration) Act provisions in this regard.
In Simon v SSAT Executive Director [2010] FMCA 373 (‘Simon’) a decision of the Executive Director was reviewed.
However nobody who appeared in Simon objected to the Court’s jurisdiction on the basis that this decision was not made by the ‘SSAT’ as such, but on the basis that the applicant failed to apply for a review within a reasonable time of the Executive Director’s decision to remove him as a party.
There appears to be no right of appeal from decisions of the Executive Director (or in the current version of the Act, the SSAT Principal Member). Nor does there appear to be any right of review from a decision of the Executive Director or Principal Member by the Tribunal itself, pursuant to the provisions of the Child Support (Registration and Collection) Act or the Social Security (Administration) Act.
In these circumstances the appellant’s appeal with respect to decision MC234012 must fail as the appellant was removed from being a party, and the respondent ceased to pursue a review, the result of which was that no decision was required or made by the ‘SSAT’ as defined in the Child Support (Registration and Collection) Act and the Social Security (Administration) Act.
To the extent that the dismissal may have been effected by an officer of the SSAT on behalf of the Executive Director, it appears that there are various delegations and powers provided for in clause 20 of Schedule 3 of the Act, and no specific challenge has been made to the particular delegation said to have been in place and exercised by the officer.
In the circumstances it appears that the only option open to the appellant to challenge the conduct of the Executive Director (or their delegate) is by way of Administrative Decisions (Judicial Review) Act proceedings. This was raised with the appellant earlier in the proceedings, and it appears that the appellant is pursuing such review in the Federal Court, not the Federal Magistrates Court.
With respect to the decision in the review by the SSAT in matter MC234014, it does not appear that there is a ground of appeal that squarely addresses this decision. The SSAT have clearly summarised the appellant’s position in their decision, saying that the appellant objects to collection by the CSA, at least until such time as there is no longer a dispute as to the amount (see paragraph 7). There does not appear to me to be any error apparent on the face of the review decision by the SSAT with respect to the Agency’s decision to collect child support on behalf of the respondent. In these circumstances the appeal, to the extent that it relates to this decision, must be dismissed.
The appellant also argued that the decisions with respect to his income amount were contrary to law as a result of the operation of ss.56, 57 and 43 of the Child Support (Assessment) Act.
Section 56 of the Child Support (Assessment) Act provides for the meaning of the term “taxable income” as it is used in the child support legislation. Whilst the definition is long and detailed, in substance it provides for the taxable income amount under the child support scheme to be a reference to the most recent taxable income as determined under the income tax legislation.
Section 57 provides definitions for circumstances where a person’s taxable income under the taxation legislation is nil. Importantly, s.56(4) and s.57(9) specifically set out that the section does not prevent the Registrar from making any determination under Part VIA (departure provisions). That is, the Registrar is entitled to alter the administrative assessment for child support under Part VIA notwithstanding the provisions of ss.56 and 57 which are applicable when a formula assessment is carried out.

At this point I pause to note that the two types of child support assessment that may be administratively issued by the Registrar can conveniently be described as falling into 2 general categories. The first category is a formula assessment calculated in accordance with the mathematical formulas provided for in the Child Support (Assessment) Act; the second category is an administrative assessment calculated in accordance with a determination by the Registrar under Part VIA, or by the courts under Part VII of the Child Support (Assessment) Act.
Section 43 of the Act provides for the second step in determining a formula assessment, that is calculating the “adjusted taxable income”. The term “adjusted taxable income” is defined by s.43 as being the total of a person’s taxable income, together with reportable fringe benefits, certain foreign income, net investment losses (within the meaning of the taxation legislation), tax-free pensions or benefits, and reportable superannuation contributions. The purpose of s.43 is to ensure that when the Registrar applies the child support formula to an income amount for a parent, that income amount is a figure that reasonably represents the parent’s financial resources, rather than simply the taxable income as defined in the taxation scheme. The additional amounts defined in s.43 were all amounts dealt with separately under the taxation legislation, but ordinarily form part of the overall income resources of a person, when considering their capacity to support their children.
The appellant argues that if ss.43(1)(b), (c), (d) or (e) apply in a given case, then s.57(1) cannot apply. This is recognised by section 57(1), and appears in any event to be axiomatic. That is, even if the taxable income is in accordance with the taxation information, then the effect of s.43(1), if there are amounts contained within the categories listed in s.43(1)(b) to (e), would mean that the adjusted amount is in excess of a nil income amount.
Importantly, it appears clear that these provisions are not intended to limit the broad discretion provided to the courts in exercising the power under s.117 of the Act, nor the broad discretion conferred upon the Registrar under Part VIA (see s.98C and s.98L), which specifically provide for powers to administratively assess child support at an amount different to that provided by the formula provisions, so as to provide for the small number of cases that cannot be adequately covered by the relatively simple mathematical formula contained in the earlier parts of the legislation.
As a result, to the extent that the appeal attempts to challenge the determinations of the Registrar on this basis it is doomed to fail.
The final ground of appeal argued by the appellant was that the Constitution provides certain rights with respect to a right to be heard and rights of appeal. It is not appropriate for me to venture upon a discussion about potential Constitutional issues, as a Constitutional challenge is not appropriately raised in this appeal from the decision of the SSAT. These matters can be raised in the Federal Court proceedings for judicial review if the appellant seeks to pursue them.
In the circumstances, I therefore dismiss the appeal.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 27 September 2010