Child Support Registrar & Ahern
[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) Migration Act 1958 (Cth) |
| Burns & Grint [2014] FamCAFC 48 |
| 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 |
SOLICITOR FOR THE FIRST RESPONDENT: | Jackson Lalic Lawyers |
| SECOND RESPONDENT: | No Appearance |
Orders
(a) There be leave to appeal Orders 1, 2 and 3 of the orders made on
11 June 2013 by the Federal Circuit Court.
(b) The appeal against Orders 1, 2 and 3 of the orders made on
11 June 2013 be allowed.
(c) Orders 1, 2, and 3 of the orders made on 11 June 2013 be set aside.
(2) (a) There be leave to appeal Order 1 of the orders made on 13 August 2013
by the Federal Circuit Court.
(b)The appeal against Order 1 of the orders made on 13 August 2013 be allowed.
(c) Order 1 of the orders made on 13 August 2013 be set aside.
There be no order for costs in relation to the appeals referred to in Orders 1 and 2 of these orders.
The first respondent be at liberty to apply by letter to the Eastern Appeal Registrar for the grant by the Full Court of a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the appeals referred to in Orders 1 and 2 of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & Ahern and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 79 of 2013
File Number: SYC 5609 of 2012
| Child Support Registrar |
Appellant
And
| Mr Ahern |
First Respondent
And
| Ms Ahern |
Second Respondent
REASONS FOR JUDGMENT
These reasons for judgment relate to applications by the Child Support Registrar (“the Registrar”) for leave to appeal:
1)
orders made by Judge Scarlett of the Federal Circuit Court on
11 June 2013 allowing an appeal by Mr Ahern (“the father”) against a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 26 May 2012, setting aside that decision, and remitting the matter, which was the subject of the decision, to the SSAT “for determination according to law”: and
2)an order made by Judge Scarlett on 13 August 2013 requiring the Registrar to pay the father’s costs (fixed at $18,680) in relation to the appeal allowed by his Honour’s orders of 11 June 2013.
The father is the first respondent to these applications for leave to appeal.
The second respondent to these applications is Ms Ahern (“the mother”), who is the mother of the father’s three children, and to whom the father pays child support for those children. The mother did not participate in the hearing of these applications.
The statutory provisions governing appeals to this Court from the
Federal Circuit Court when it exercises original jurisdiction in relation to appeals from the SSAT under the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”), have been explained in the recent decisions of this Court in Child Support Registrar & Crabbe & Anor
[2014] FamCAFC 10 and Burns & Grint [2014] FamCAFC 48.
THE APPLICATION FOR LEAVE TO APPEAL/ THE APPEAL AGAINST THE ORDERS OF 11 JUNE 2013
In seeking leave to appeal the orders of 11 June 2013, which allowed the appeal against, and set aside the decision of the SSAT, the Registrar submitted that the proposed appeal would raise issues of general importance for the operation of the child support scheme. As will be seen from what follows, this submission is certainly valid, and we note that counsel for the father did not oppose the grant of leave to appeal although the appeal itself was opposed. Accordingly, we will grant leave to appeal the orders of 11 June 2013.
(See also in this regard: Child Support Registrar & Crabbe & Anor
[2014] FamCAFC 10; Burns & Grint [2014] FamCAFC 48; and
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd(2008) 169 FCR 435 at [30]).
The issue in this appeal
Put in the simplest possible terms, and without reference at this point to the detailed history of this case or to the relevant statutory provisions, the essential issue in this appeal is 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 particular period which was the subject of the Registrar’s decision (subject, of course, to procedural fairness considerations).
In the present case, and again put as simply as possible, the father applied to the SSAT for a review of a decision by the Registrar concerning the annual rate of child support payable by the father in the period from 1 May to 29 July 2010.
The SSAT set aside the Registrar’s decision and substituted its own decision, as to the annual rate of child support payable for the periods:
a) 1 May to 30 June 2010; and
b) 1 July 2010 to 30 June 2013.
On appeal by the father to the Federal Circuit Court, Judge Scarlett concluded that the SSAT had no jurisdiction to make a determination of the father’s liability for the period of 1 July 2010 to 30 June 2013 because the father’s application for review had only been in relation to the period 1 May to 29 July 2010. Accordingly, his Honour made the orders, which are the subject of this appeal, and by which he allowed the father’s appeal, set aside the SSAT decision, and remitted the matter for re-determination by the SSAT.
History of this case against the background of the relevant statutory provisions
The administrative assessment under Part 5 of the Assessment Act
Administrative assessments of child support are issued by the Registrar under Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) following applications for such assessments made under Part 4 of that Act by either parent or an “eligible carer” of a child. Administrative assessments are made on the basis of formulas contained in Part 5 of the Assessment Act. A component of the formulas is the “child support income” of a parent which is based on the parent’s “adjusted taxable income”.
It appears that administrative assessments have been issued by the Registrar against the father in respect of the three children of his relationship with the mother for the following periods:
·1 March to 24 May 2009;
·25 May to 20 August 2009;
·21 August to 2 September 2009;
·3 September 2009 to 30 April 2010
·1 May to 29 July 2010;
·30 July 2010 to 1 January 2011;
·2 January to 30 June 2011;
·1 July 2011 to 3 September 2012.
(See decision of the Registrar dated 22 June 2011 in relation to an application for departure from an administrative assessment.)
It is the administrative assessment for the period 1 May to 29 July 2010 which is presently relevant. It appears to have been issued on 12 November 2010, and it provides for an annual child support amount of $16,656 which was based on an adjusted taxable income for the father of $83,293.
The departure determination under Part 6A of the Assessment Act
Under Part 6A of the Assessment Act (s 98A to s 98V) the parent who is liable to pay child support or the carer entitled to receive child support under
a particular administrative assessment can apply for a determination by the Registrar that “because of special circumstances that exist” there should be
a departure from the administrative assessment (s 98B).
In determining whether there should be a departure from an administrative assessment, the Registrar must be satisfied (under s 98C) as to the same matters that a court is required to be satisfied before it makes an order for departure from administrative assessment under Division 4 of Part 7 of the Assessment Act; those matters, which are contained in s 117(1) of the Act, are that in the special circumstances of the case a ground for departure exists, and that it would be just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper to depart from the administrative assessment. The precise terms of s 117(1) are as follows:
117(1) Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
The determinations that the Registrar may make under Part 6A are set out in
s 98S. We will set out that section in full when we refer to it again later in these reasons.
On 5 April 2011 the father made such a departure application in respect of the administrative assessment for the period stated in his application to be
1 May to 31 July 2010 (but treated in the determination of the Registrar as being 1 May to 29 July 2010). As mentioned above, that administrative assessment provided for an annual child support amount of $16,656 based on an adjusted taxable income of $83,293.
In a decision published on 22 June 2011, the Registrar accepted that one of the three reasons put forward by the father as a ground for departure from the administrative assessment was established, saying:
Having considered the financial statements before me I am satisfied that [the father’s] income for child support purposes for the period between May 2010, June 2010 and July 2010 is equivalent to the income of $30,959 which is the income [the father] received from his business in the 2009/2010 financial year. Given [the father] was assessed on an income of $83,293 during that period I find that the assessment is unfair and Reason 8 is established.
Having found that “special circumstances” existed in this case, the Registrar also found “that it would be just and equitable and otherwise proper to make the change”.
The Registrar’s decision then was:
For the period 1 May 2010 and 29 July 2010 the CSA is to set [the father’s] annual rate of child support at an amount that will reduce his arrears to as close to zero as possible but will not result in [the mother] being put into overpay situation.
The internal objection process under Part VII of the Collection Act
Part VII of the Collection Act (s 79D to s 87AA) provides for “internal reconsideration of decisions of the Registrar before the decision may be reviewed by the SSAT under Part VIIA”. Under Part VII certain persons
(who are listed in a table in s 80) may lodge a written objection to particular decisions (which are also listed in the table in s 80) made by the Registrar under the Collection Act or the Assessment Act.
One of the decisions against which an objection may be lodged, and which is provided for in Item 15 of the table, is a decision “to make or refuse to make a determination under Part 6A of the Assessment Act” (that is, a determination for a departure from an administrative assessment). The persons who may object to such a decision are the carer entitled to child support and the liable parent.
On 11 October 2011 the father was granted an extension of time to lodge an objection against the Registrar’s departure decision of 22 June 2011.
In the decision of the Senior Objections Officer in relation to the father’s objection, which was dated 9 December 2011 and made under s 87(1) of the Collection Act, the objection was “allowed in part”, the Registrar’s decision of 22 June 2011 was set aside, and replaced with the following decision:
For the period from 1 May 2010 to 29 July 2010 to [sic] the annual rate of child support is set at $13,677.
As pointed out in the Registrar’s written submissions to us, the decision in relation to the objection did not in effect change the assessment made in the Registrar’s departure decision under Part 6A, but rather in the interests of clarity, set the amount payable. (See the third last paragraph of the reasons for the decision on the objection dated 9 December 2011).
The SSAT review under Part VIIA of the Collection Act
Under Part VIIA of the Collection Act (s 87A to s 103ZAC) a person may apply for a review by the SSAT of a decision of the Registrar if the decision is one listed in the table contained in s 89 in Part VIIA and the person is a person listed in that table as a person who may apply for a review of a particular decision listed in the table.
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.
The appeal to the Federal Circuit Court under Division 3 of Part VIII of the Collection Act
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.
Having accepted the father’s submission that the SSAT “cannot go outside the decision that was the subject of the objection process” (at [102]), and rejected the Registrar’s submission that “nothing in the legislation compels the conclusion that the SSAT’s jurisdiction is confined by the terms of the actual decision made on the objection (let alone the terms of the application for departure determination)”, his Honour observed:
103.It cannot be the case that, on a review of a decision by the Child Support Registrar on an objection, the Social Security Appeals Tribunal’s jurisdiction is entirely at large. If it were so, an applicant who wished to review a decision would have cause for apprehension about opening a “Pandora’s box”, because, if the Registrar is correct, the Tribunal would have the power to make decisions about matters that were not in issue between the parties.
After outlining the statutory scheme in Part VII and Part VIIA of the Collection Act (particularly ss 80, 87 and 89), which he considered (at [104]) provided “a clear and logical progression from the original decision to the appeal to the SSAT”, his Honour discussed the decisions of Sexton FM
(as her Honour then was) in Child Support Registrar v MMB (2007)
39 Fam LR 265 and of Riethmuller FM (as his Honour then was) in
Kindree v Child Support Registrar[2010] FMCAfam 357; (2010) FLC 98-052.
His Honour concluded (at [131]) that he was “not persuaded” that Kindree should be followed “in so far as it differs” from MMB which in his Honour’s view “states the law”.
His Honour’s conclusion in relation to Ground 2 of the appeal expressed in [132] of his reasons, was that the father had “demonstrated that the [SSAT] made a departure in respect of the period 1 July 2010 to 30 June 2013 when it had no jurisdiction to do so”.
Accordingly, in his orders his Honour allowed the appeal against the decision of the SSAT, set aside that decision, and remitted “[t]he matter … for determination according to law.”
The grounds of appeal against the orders of the Federal Circuit Court allowing the appeal against the SSAT decision
The grounds of this appeal against his Honour’s orders are that he erred:
·… in finding that the [SSAT], when reviewing a decision of the [Registrar] to make a departure determination for a particular period under Part 6A of the [Assessment Act], had no jurisdiction or power to make a decision with respect to a period other than that the subject of the decision made by the Registrar; (Ground 1)
· … in not finding that, when reviewing a decision of the Registrar to make or to refuse to make a departure determination under Part 6A of the Assessment Act, … the SSAT was authorised by ss 103S(1) and 103T(1) of the [Collection Act], either alone or read with s 98S(2) and (3) of the Assessment Act, to make a decision with respect to a period of time different to that the subject of the decision made by the Registrar.
(Ground 2)Thus, as we indicated at the outset of these reasons, the question raised by this appeal is whether the SSAT can, when reviewing a decision of the Registrar on an objection to a departure decision for a particular period, make a decision with respect to a period other than the period to which the Registrar’s decision related. As indicated by the grounds of appeal, the Registrar contends that this question should be answered in the affirmative (as did Reithmuller FM in Kindree), while the father contends it should be answered in the negative (as did Judge Scarlett in the present case).
The submissions in support of and in opposition to the grounds of appeal
In order to appreciate the submissions of the Registrar in support of the appeal and those of the father in opposition to it, it is necessary to refer again to certain provisions of the Assessment Act and the Collection Act, which have already been mentioned, but which were particularly relied upon in submissions to us.
Section 98B in Division 2 of Part 6A of the Assessment Act provides for an application to be made to the Registrar “to make a determination under this Part” (that is, a determination that there be a departure from the administrative assessment in a particular case). In this case, such an application was made by the father in relation to the administrative assessment which provided for an annual child support amount of $16,656 for the period 1 May to 29 July 2010.
Section 98S(1) in Division 4 of Part 6A later enumerates the various determinations which may be made by the Registrar under that Part; those determinations are:
(a)a determination varying the annual rate of child support payable by a parent;
(b)a determination varying a parent’s or non‑parent carer’s cost percentage for a child;
(c) a determination varying a parent’s child support income;
(d)a determination varying the parents’ combined child support income;
(e) a determination that:
(i)the column in the Costs of the Children Table that covers a parent’s child support income or combined child support income that is, or is determined to be, greater than
2.5 times the annualised MTAWE figure for the relevant June quarter, is the column headed “2 to 2.5”; and(ii)the column is to apply as if the second dollar amount in the heading to that column did not apply
(f) a determination varying a parent’s child support percentage;
(g) a determination varying a parent’s adjusted taxable income;
(h)a determination varying a parent’s relevant dependent child amount or multi‑case allowance;
(i) a determination varying a parent’s self‑support amount;
(j) a determination varying the costs of the children.
Sub-sections 98S(2) and (3) then provide:
(2)In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
(3)A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period.
As will be explained more fully later, s 98S(2) and (3) of the Assessment Act are important for the Registrar’s case before us because the Registrar contends that those sub-sections are applicable to a review by the SSAT of a departure decision (which has been subject to the objection process) by virtue of the provisions of s 103T(1) of the Collection Act (which will be later set out).
In the present case the departure determination which was made by the Registrar on 22 June 2011 (being, that for the period 1 May to 29 July 2010 the father’s annual rate of child support is to be set “at an amount that will reduce his arrears as close to zero as possible, but will not result in [the mother] being put into over-pay situation”) was clearly “a determination varying the annual rate of child support payable by a parent”; that is, it was a determination under s 98S(l)(a).
As referred to above s 80 in Part VII of the Collection Act provides that an objection may be lodged to a decision of the Registrar if the decision is one of the decisions listed in the table then set out in s 80. The decision listed as Item 15 in that table is a decision “to make or refuse to make a determination under Part 6A of the Assessment Act.” It appears to be uncontroversial that the departure determination made in this case by the Registrar on 22 June 2011, and set out in our last paragraph, comes within the description of a decision “to make … a determination under Part 6A of the Assessment Act”.
However, as we understand the parties’ respective positions, the Registrar contends that for the purpose of identifying the decision which was reconsidered in the objection process under Part VII of the Collection Act and then reviewed by the SSAT under Part VIIA of that Act, that decision should be identified and treated broadly as “a determination under Part 6A of the Assessment Act”. On the other hand, the father contends that the decision in question should be identified and treated narrowly as a decision to set the annual rate of child support payable by him for a particular period. The significance of this difference between the parties will emerge later – although as will later be explained it was ultimately submitted by senior counsel for the Registrar that if we were to accept that the decision should be identified in the narrow terms contended for by the father, it would make no difference to the Registrar’s case before us.
Section 87(1) in Part VII of the Collection Act provides for the Registrar to either (i) disallow the objection or (ii) allow it in whole or in part. In the Notice of Decision on Objection in relation to the father’s objection in this case (which was made under s 87(1)), the following statement appears under the heading “Decision” both at the beginning and end of the Notice:
The Objection is allowed in part. The decision made by [the Registrar’s delegate] is set aside and replaced by the following:
·For the period from 1 May 2010 to 29 July 2010 to [sic] the annual rate of child support is set at $13,677.
As we identified above Part VIIA of the Collection Act provides for reviews by the SSAT of those decisions of the Registrar which are listed in the table in s 89 of that Act. Again there appears to be no dispute that the decision in the present case (whether identified in broad or narrow terms) came within the description in that table of “a decision under subsection 87(1) on an objection to a decision (the original decision) of the Registrar” (emphasis in the original), although whether the original decision should be identified in the broad or narrow terms previously explained remains an issue.
Section 103S of the Collection Act provides that on a review under Part VIIA, the SSAT must:
(a)affirm the decision; or
(b)vary the decision; or
(c)set the decision aside and:
(i)substitute a new decision; or
(ii)send the matter back to the Registrar for reconsideration in accordance with any directions or recommendations of the SSAT.
In support of the Registrar’s contention that the SSAT can, when reviewing an objection decision relating to a departure decision of the Registrar, make a decision with respect to a period other than the period to which the Registrar’s decisions related, and that the powers of the SSAT are therefore not limited in the way found by Judge Scarlett and now contended for by the father, senior counsel for the Registrar placed particular reliance on the apparently wide powers conferred on the SSAT not only under s 103S(1)(b) to “vary” the decision under review, but also under s 103S(1)(c)(i) to set aside that decision and to “substitute a new decision”.
We observe in passing that the power conferred on the SSAT by
s 103S(1)(c)(i) to substitute an entirely new decision appears to have been overlooked in the drafting of Ground 2(h) of the grounds of appeal in the father’s Amended Notice of Appeal against the SSAT decision. (Those grounds of appeal are set out in [32] of these reasons).
Section 103T of the Collection Act provides:
(1)Subject to the regulations, the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
(2)To avoid doubt, any limitation on the exercise of a power or discretion by the Registrar also limits the exercise of that power or discretion by the SSAT under this Part.
(3)The regulations may specify provisions of this Act and the Assessment Act to which subsection (1) does not apply.
In so far as there are references to “regulations” in s 103T, we were informed by senior counsel for the Registrar that for present purposes there were no relevant regulations.
Senior counsel for the Registrar contended that the provisions of s 103T(1) mean that when the SSAT is reviewing, as it did in this case, an objection decision relating to a decision to depart from an administrative assessment, it has all the powers of the Registrar under s 98S of the Assessment Act. In other words, in making its determination on such a review, the SSAT is not limited by the terms of the application for the administrative assessment (s 98S(2)) and may make provision in its determination for different periods (s 98S(3)), presumably including periods other than the period to which the administrative assessment related.
In making these submissions on behalf of the Registrar, senior counsel relied on the following conclusion reached by Reithmuller FM in Kindree (which was rejected by Judge Scarlett in the present case):
[20]Section 98S(2) of the [Assessment Act] states that the power of the Registrar to vary an annual rate of child support is “not limited by the terms of the application”. Section 103T(1) of the [Collection Act] confers on the tribunal “all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar” As a result, the tribunal stands in the shoes of the Registrar and therefore has the power to vary an annual rate of child support beyond the period referred to in the application.
In relation to s 98S(3), senior counsel placed some reliance on what was said by the Full Court of this Court in Hendy v Deputy Child Support Registrar (2001) 27 Fam LR641 in relation to that sub-section:
[70]We agree with the trial Judge that s 98S(3) prescribes that the Child Support Registrar may make determinations in relation to multiple child support periods, and that there is nothing contained in that or any other provision that would lead to a conclusion that such references must be construed as only applying to current or previous child support periods. The first part of s 98S(3) would be meaningless if it only applied to the child support assessment period under review.
The principal submission made by counsel for the father in seeking to uphold Judge Scarlett’s orders related to the need to identify precisely the decision, which was the subject of review by the SSAT, for the reason that it is only for the purpose of reviewing that decision, that the SSAT can under s 103T of the Collection Act “exercise all the powers and discretions” conferred on the Registrar by the Collection Act and the Assessment Act (including those contained in s 98S of the Assessment Act).
In support of this submission counsel relied not only on the decision of the Federal Magistrates Court in MMB (and on which Judge Scarlett relied
in the present case), but also on the decisions of the Federal Court in
Minister for Immigration and Multicultural Affairs v Ahmed (2005)143 FCR 314 and in Comcare v Burton (1998) 157 ALR 522.
In Ahmed the Full Court of the Federal Court made certain observations in relation to s 349 of the Migration Act 1958 (Cth). That section can be seen to contain very similar provisions to the provisions of ss 103S and 103T of the Collection Act in that it provides:
(1)The Tribunal may, for the purposes of the review of an
MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
The observations made by the Full Court of the Federal Court in Ahmed in relation to s 349 and to the need to identify the decision which is subject to review, were as follows:
[36]… The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. … The review is of the
MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss 119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate. Once that decision and its boundaries are identified one knows the subject matter of the statutory process of review: Secretary, Department of Social Security v Riley (187) 17 FCR 99 at 105 (per Northrop J);
Owen v Repatriation Commission (1995) 59 FCR 93 at 99
(per Finn J); Comcare v Burton (1998) 28 AAR 70 at 73-74;
50 ALD 846 at 850 (per Finn J). …In both her written and oral submissions counsel for the father outlined the terms of the father’s application for a departure from the administrative assessment for the period 1 May to 31 July 2010, the Registrar’s departure decision, the father’s objection to the departure decision, the Registrar’s decision on the objection, and the father’s application for a review of the objection history. In so doing counsel emphasised that those applications and decisions had all been limited to the issue of the annual rate of child support (payable by the father) for the period 1 May to 29 July 2010; and she submitted that it was only the objection decision on that issue that the SSAT had jurisdiction to review and that it was only within the confines of reviewing that particular and narrowly expressed decision that the powers in
s 98S of the Assessment Act could be exercised by the SSAT.
Although senior counsel for the Registrar warned of the need for “close attention” to be paid to the actual statutory provision being considered in any particular case, it is important to record that he did not take issue with the proposition which emerges from cases such as Ahmed, Comcare v Burton, and MMB, being that when there is a subsequent challenge to the outcome of a review by a tribunal such as the SSAT, it is necessary to identify the precise decision which was the subject of the review.
Indeed, it is instructive to note that this was the proposition which the Registrar strongly argued for in MMB, although the position of the Registrar before us was that that decision was distinguishable from the present case. This was said to be because that case was concerned with a decision “as to the particulars of an administrative assessment”, which was a decision within Item 11 of the table in s 80 of the Collection Act of the decisions of the Registrar against which objections may be lodged; thus not being an Item 15 decision (as in this case), the powers in Part 6A of the Assessment Act were not available to the SSAT on a review of the decision in that case.
Counsel for the father also submitted that the purposes and objects of Parts VII and VIIA of the Collection Act are to permit an internal merits review structure for administrative assessments under Part 5 of the Assessment Act and departure decisions under Part 6A of that Act, and also to permit external merits review by the SSAT of the objections decisions by the Registrar. These purposes and objects would be defeated if the SSAT was to make decisions for the first time in respect of matters not subject of the original objection decision.
The Registrar’s response to the father’s submissions concerning the availability of merits review following a “new” decision made by the SSAT was to the effect that because an amended administrative assessment will be issued by the Registrar to give effect to the SSAT decision (pursuant to s 110V of the Collection Act and ss 75(4)(f) and (6) of the Assessment Act), it will always be open to a person dissatisfied with that amended assessment to apply for a departure from that assessment (as is confirmed by s 98J(1) of the Assessment Act) provided, of course, that that person can establish a ground for departure from the assessment under s 98C of the Assessment Act.
Discussion and conclusion
It will have been seen from what has been said so far, that where an application is made to the Registrar under Part 6A of the Assessment Act for a departure from an administrative assessment, the Registrar is not limited by the terms of the application as to the determinations which can be made on the application (s 98S(2)), and that the determination may cover, and make different provision for, different child support periods (s 98S(3)). Thus even at the initial stage of the departure application, the “Pandora’s box” which was of concern to Judge Scarlett in his reasons for judgment in this case, will have been opened; or perhaps put another way, “the boundaries of the administrative controversy” referred to by the Full Court of the Federal Court in Ahmed are extremely wide.
It will also have been seen that s 103T(1) of the Collection Act provides that when the SSAT reviews an objection decision made in relation to an original decision of the Registrar, the SSAT may for the purpose of reviewing that decision exercise all the powers and discretions that are conferred on the Registrar not only by the Collection Act, but also by the Assessment Act.
It must be accepted having regard to authorities such as Ahmed, and even more importantly, having regard to the language of s 103T(1), that in order to determine what powers of the Registrar can be exercised by the SSAT in a review of a particular objection decision, that the decision, which is the subject of the review, be identified.
However, we agree with the ultimate position adopted by senior counsel for the Registrar, that it does not matter whether the objection decision, which was reviewed in this case, should be narrowly expressed as being a decision that “for the period 1 May to 29 July 2010 the annual rate of child support is set at $13,677”, or should be more broadly expressed as a “determination under Part 6A of the Assessment Act” (being, as it is, a determination varying the annual rate of child support payable by a parent).
We take this view because the more narrowly expressed determination must clearly come within the broader formulation of the determination; in other words, a decision varying the annual rate of child support for a particular period is a departure decision under Part 6A of the Assessment Act, and again in our view, must remain so notwithstanding that the departure decision has been the subject of the objection process; there is nothing in the legislation to suggest to the contrary.
We mention here that the precise practical implications of the father’s contention that the determination which was subject to the SSAT review, should be narrowly expressed, are not entirely clear to us. We can only assume that the father would contend that in reviewing the objection decision, the SSAT would only be able to vary the amount of the annual rate of child support payable; in other words, the SSAT could only exercise the powers in
s 98S(1)(a) of the Assessment Act. However, we can see no warrant for such a narrow interpretation, particularly given the powers in ss 98S(2) and (3) which were available to the original decision maker when exercising the power in s 98S(1)(a).
We therefore conclude that in reviewing the objection decision made in relation to the original departure decision, the SSAT had by virtue of
s 103T(1) of the Collection Act, all the powers of the Registrar under
Part 6A of the Assessment Act, including the powers in s 98S to make a departure determination in terms not sought in the application for the departure. Moreover, the SSAT also had the power under s 103S(1) of the Collection Act to set aside the decision which was subject to the review and to substitute a new decision (subject always to procedural fairness considerations).
We are thus in agreement with the views expressed by Riethmuller FM in Kindree, and we agree with senior counsel for the Registrar that the decision of Sexton FM in MMB can be distinguished for the reasons given by senior counsel and recorded earlier in these reasons.
We are also in agreement with the submissions made on behalf of the Registrar in opposition to the submissions made on behalf of the father to the effect that the legislation did not permit the SSAT to make the decision, which it did make in this case, because that would result in there being no merits review of the new decision made by the SSAT. It must be remembered in this context that the SSAT is empowered under s 103S(1) of the Collection Act to make “a new decision”. That new decision will become the new administrative assessment, which can be the subject of a new departure application if the grounds for such an application are available.
Given the conclusion which we have reached, the appeal against the orders made by Judge Scarlett on 11 June 2013 will be allowed and those orders set aside. The decision of the SSAT made on 26 May 2012 will therefore stand.
THE APPLICATION FOR LEAVE TO APPEAL/ THE APPEAL AGAINST THE COSTS ORDER OF 13 AUGUST 2013
Subsequent to making his orders on 11 June 2013 allowing the father’s appeal against the decision of the SSAT, Judge Scarlett made further orders on
13 August 2013, which included, as Order 1, an order that the Registrar should pay the father’s costs fixed in the sum of $18,680.
The Registrar seeks leave to appeal that order, with the proposed grounds of appeal raising issues concerning the scale on which costs should be payable in a case such as the present. However, it was the Registrar’s submission (in [3] of the written submissions) that if the appeal against the orders of 11 June 2013 was to succeed, then the costs order would also have to be set aside. We did not understand the father to challenge that submission. But whatever the father’s position, it is clear that the costs order against the Registrar cannot stand given that a reason for its being made was the Registrar’s lack of success before Judge Scarlett in relation to the appeal against the SSAT decision. Given that we have now upheld the Registrar’s appeal against his Honour’s orders relating to the SSAT decision, the costs order against the Registrar cannot stand, and it is thus unnecessary for us to consider other issues which were raised by the appeal against that order.
Accordingly, leave will be given to the Registrar to appeal the costs order, the appeal against that order will be allowed and the order set aside.
COSTS OF THE APPEALS
In the event that the Registrar was wholly successful in these appeals, the Registrar sought that there should be a costs order against the father. For his part the father sought that even if the Registrar was wholly successful in these appeals, the Registrar should nevertheless pay his costs because of the issues of general importance raised by the first appeal.
Given the important issues raised by the first appeal, we do not consider that an order for costs against the father in favour of the Registrar as sought by the Registrar would be justified. But given the outcome of the first appeal, we also do not consider that a costs order against the Registrar in favour of the father as sought by the father would be justified.
Accordingly, there should be no order in relation to the costs of these appeals.
However, given the success of the first appeal on the basis of what was clearly a question of law, the father would be entitled to a costs certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). The Registrar would not be entitled to a costs certificate given the provision of s 14 of that Act. In order to obtain a s 6 costs certificate, the father should apply for such a certificate by letter to the Eastern Appeal Registrar.
I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 23 June 2014.
Associate:
Date: 23 June 2014
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