Child Support Registrar & Ahern

Case [2014] FamCAFC 105

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & AHERN AND ANOR [2014] FamCAFC 105

FAMILY LAW – APPEAL – CHILD SUPPORT – Where the Child Support Registrar sought leave to appeal the orders of the Federal Circuit Court setting aside the decision of the SSAT – where the essential issue was whether, where there is an application to the SSAT to review a decision of the Registrar concerning the amount of child support payable for a particular period, the SSAT has the jurisdiction or power to determine the amount of child support payable for periods other than the period to which the Registrar’s decision related – where the Full Court found that the SSAT has under s 103T(1) of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) all the powers of the Registrar under Part 6A of the Child Support (Assessment Act) 1989 (Cth), including the powers under s 98S to make a departure determination in terms not sought in the departure application, and the power under s 103S(1) of the Collection Act to set aside the decision subject to review and substitute a new decision (subject to procedural fairness) – where the Full Court distinguished this case from CSR v MMB (2007) 39 Fam LR 265 – where the full Court agreed with the views expressed in Kindree v CSR (2010) FLC 98-052 – leave to appeal granted – appeal allowed – orders set aside - no order for costs.

FAMILY LAW – APPEAL – COSTS ORDER – where the Child Support Registrar seeks leave to appeal the costs order – leave to appeal granted – appeal allowed – order set aside – no order for costs. 

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth)

Burns & Grint [2014] FamCAFC 48
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar v MMB (2007) 39 Fam LR 265
Comcare v Burton (1998) 157 ALR 522
Kindree v Child Support Registrar [2010] FMCAfam 357; (2010) FLC 98-052
Minister for Immigration and Multicultural Affairs v Ahmed (2005) 143 FCR 314
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (2008) 169 FCR 435
APPELLANT: Child Support Registrar
FIRST RESPONDENT: Mr Ahern
SECOND RESPONDENT: Ms Ahern
FILE NUMBER: SYC 5609 of 2012
APPEAL NUMBER: EA 79 of 2013
DATE DELIVERED: 23 June 2014
PLACE DELIVERED: Canberra
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Finn and Strickland JJ

HEARING DATE:

 3 October 2013
DATE OF LAST SUBMISSIONS: 15 November 2013
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 11 June 2013 & 13 August 2013
LOWER COURT MNC: [2013] FCCA 436
[2013] FCCA 1072

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lancaster SC with Ms Mitchelmore
SOLICITOR FOR THE APPELLANT: Australian Government Solicitor
COUNSEL FOR THE FIRST RESPONDENT: Ms Kaur-Bains with Mr Gerrard

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Child Support Registrar & Ahern [2014] FamCAFC 105
Case
[2014] FamCAFC 105
Decision Date

CaseChat Overview and Summary

In the case of Child Support Registrar v Ahern, the primary issue before the court was the jurisdiction of the Social Security Appeals Tribunal (SSAT) to review and revise a decision made by the Child Support Registrar regarding the calculation of adjusted taxable income for child support purposes. The father had objected to the Registrar's original decision, which was subsequently reviewed by the SSAT. The SSAT's decision to adjust the income figures for a period beyond the scope of the original decision led to an appeal by the father to the Federal Circuit Court, on the basis that the SSAT exceeded its jurisdiction.

The central legal issue was whether the SSAT had the authority to make a departure order for a period not covered by the original decision or the objection decision. The father argued that the SSAT's decision to alter the income figures for a period after the objection period was outside the scope of the review and constituted an entirely new decision. The court had to determine if the SSAT's actions were within the bounds of its powers as outlined in the relevant statutes.

The Federal Circuit Court found in favour of the father, holding that the SSAT did not have the jurisdiction to make a departure order for the period 1 July 2010 to 30 June 2013, as it was not within the scope of the original decision or the objection decision. The court reasoned that the SSAT, while reviewing the Registrar’s decision, overstepped its authority by altering income figures for a period not included in the original or objection decision. This action, according to the court, was not a review but the creation of a new decision, which the SSAT was not empowered to do.

The court's decision resulted in the SSAT's order being set aside, and the case was remitted back to the SSAT for reconsideration within the proper jurisdictional scope. The Federal Circuit Court emphasised that the SSAT must confine its review to the scope of the decision under review, and any departure from this would render the SSAT's decision unlawful.

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

One of the decisions contained in the table in s 89 in respect of which there can be an application for review to the SSAT is “a decision under sub-section 87(1) on an objection to a decision (the original decision) of the Registrar.” (Emphasis in original). The decision made in the present case on 9 December 2011 in relation to the father’s objection was such a decision. One of the persons listed in the table in s 89 as being a person able to apply for a review is the person who objected to the original decision. On 6 January 2012 the father lodged an application for a review by the SSAT of the Registrar’s decision on his objection. In a decision made on 26 May 2012 under s 103S the SSAT set aside “the decision under review” and substituted a decision that the father’s adjusted taxable income be set as follows:·$46,427 for the period 1 May 2010 to 30 June 2010;·$68,330 for the period 1 July 2010 to 30 June 2013. It will be seen that the SSAT decision related to periods (30 July 2010 to 30 June 2013) which were not the subject of the original departure determination, or of the objection decision. Under s 110B (in Division 3 of Part VIII) of the Collection Act, a party to a review by the SSAT under Part VIIA of that Act may appeal to a court having jurisdiction under that Act on a question of law from a decision of the SSAT on that review made under s 103S of that Act. On a date which is not clear on the material before us, the father filed an appeal in the Federal Magistrates Court (now the Federal Circuit Court) against the decision of the SSAT. That appeal was heard by Judge Scarlett on 13 May 2013. In his judgment, delivered on 11 June 2013, his Honour allowed the appeal on the basis of one of the three grounds of appeal relied on by the father; the successful ground being:The [SSAT] had no jurisdiction to make a departure order in respect of the period 1 July 2010 to 30 June 2013 for the following reasons:a.The Appellant applied, on 5 April 2011, for a departure order in relation to the period 1 May 2010 to 30 June [sic] 2010. That application is permitted by s.98B of the Assessment Act;b.On 22 June 2011 the Child Support Registrar made a determination under s.98S(1)(a) of the Assessment Act, in respect of the period 1 May 2010 to 29 July 2010 (“the original decision”);c.The Appellant objected to the original decision 16 October 2011, pursuant to s.80(1) of the [Collection Act];d.On 9 December 2011 the Child Support Registrar determined the objection to the original decision (“the objection decision”). The objection decision was restricted to the period 1 May 2010 to 29 July 2010;e.On 6 January 2012 the Appellant lodged an Application for Review in the [SSAT] in respect of the objection decision (“the decision”);f.The [SSAT] on review must do one of the things outlined in s.103S of the [Collection Act] in respect of “the decision”;g.By s.103T of the [Collection Act] for “the purpose of reviewing a decision”, being the relevant Child Support Registrar’s “decision”, the [SSAT] may exercise all the powers and discretions conferred on the Registrar; h.In making a determination for the period 1 July 2010 to 30 June 2013 the [SSAT] went beyond the scope in time of the relevant decision and was not, in doing so, reviewing the relevant decision but rather was making an entirely new decision.

Ratio Decidendi

Legal Principle Established

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