Child Support Registrar and Scullin & Anor (SSAT Appeal)
[2015] FamCAFC 200
•23 October 2015
FAMILY COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & SCULLIN AND ANOR (SSAT APPEAL) | [2015 ] FamCAFC 200 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the Child Support Registrar sought leave to appeal the orders of the Federal Circuit Court of Australia setting aside a determination of the SSAT – Where the father appealed the decision of the SSAT to the Federal Circuit Court – Where the essential issue was whether the SSAT, in reviewing a decision of the Registrar concerning the amount of child support payable for a particular period, failed to accord the father procedural fairness by failing to inform him of the proposed duration of the assessment – Where the trial judge concluded that the father was not accorded procedural fairness – Where the Full Court found that there was no practical injustice or unfairness in the SSAT hearing – Where the Full Court agreed with the views expressed in Minister for Immigration and Citizenship v SZGUR (2010) 241 CLR 954 – Leave to appeal granted – Where no denial of procedural fairness established – Where error was established – Appeal allowed – Orders set aside – No order for costs. |
| Child Support (Assessment) Act 1989 (Cth) Part 6A, s 75(4)(f), s 75(6), s 98B, s 98J, s 98S Child Support (Registration and Collection) Act 1988 (Cth) Part VII, Part VIIA, s 80, s 88, s 103D, s 103N, s 103T, s 103S, s 107A(1)(a), s 107A(5), s 111E(1) Family Law Act 1975 (Cth) s 117(2A) Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 9, s 14 |
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous
Affairs (2005) 225 CLR 88
Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Bassingthwaite & Leane (1993) FLC 92-410
Child Support Registrar & Ahern (2014) FLC 98-063
Forbes & Bream [2010] FamCAFC 6
Frost v Kourouche (2014) 86 NSWLR 214
Gilmour & Gilmour (1995) FLC 92-591
Hendy v Deputy Child Support Registrar and Anor (2001) 27 FamLR 641
Jess and Ors & Jess and Ors (2014) FLC 93-620
Maluka & Maluka [2011] FamCAFC 187
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Rutherford and Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Wild v Ballard (1997) FLC 92-771
Yates & Yates [2012] FamCAFC 219
| APPELLANT: | Child Support Registrar |
| FIRST RESPONDENT: | Mr Scullin |
| SECOND RESPONDENT: | Ms Scullin |
| FILE NUMBER: | BRC | 9286 | of | 2013 |
| APPEAL NUMBER: | NA | 5 | of | 2015 |
| DATE DELIVERED: | 23 October 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Murphy & Austin JJ |
| HEARING DATE: | 30 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 2941 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Wilson QC Mr Tran |
| SOLICITOR FOR THE APPELLANT: | Australian Government Solicitor |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Black |
SOLICITOR FOR THE FIRST RESPONDENT: | Phillips Family Law |
COUNSEL FOR THE SECOND RESPONDENT: | Mr Alexander and Ms Walker-Munro |
| SOLICITOR FOR THE SECOND RESPONDENT: | Legal Aid Queensland |
Orders
There be leave to appeal.
The Appeal against the orders of Judge Cassidy made on 18 December 2014 be allowed.
The orders of Judge Cassidy made on 18 December 2014 be set aside.
Each party shall bear their own costs of and incidental to the appeal.
The application by the appellant for a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.
The application by the first respondent for a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & Scullin and Anor (SSAT Appeal) 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 BRISBANE |
Appeal Number: NA 5 of 2015
File Number: BRC 9286 of 2013
| Child Support Registrar |
Appellant
And
| Mr Scullin |
First Respondent
And
| Ms Scullin |
Second Respondent
REASONS FOR JUDGMENT
The Child Support Registrar seeks leave to appeal orders made by Judge Cassidy in the Federal Circuit Court on 18 December 2014.[1] Her Honour’s orders set aside a determination of the Social Security Appeals Tribunal (“SSAT”) made on 3 September 2014 in respect of child support payable by the father for his then six year old child, S (“the child”).[2]
[1]Required by Child Support (Registration and Collection) Act 1988(Cth) (“Registration Act”), s 107A(1)(a).
[2]The SSAT determination was made pursuant to Part VIIA, Registration Act. Her Honour’s decision was made pursuant to Part VIII of that Act. Amendments to the Registration Act (and the Child Support (Assessment) Act 1989 (“CSA Act”) were made by the Tribunals Amalgamation Act 2015 (Cth) by which, in broad terms, the relevant jurisdiction of the SSAT was given to the AAT. Other amendments were made (effectively consequently) to both the Registration Act and the CSA Act. References to each of those Acts in these reasons are to provisions current at the time of the proceedings before the SSAT and her Honour.
The SSAT determined that an annual rate of child support of $17,210 was payable and that it was payable for a five-year period from 22 January 2012 to 30 December 2017. Her Honour’s orders were founded upon her conclusion that the father was not accorded procedural fairness by the SSAT in respect of the determination of that five-year period.
It is uncontroversial before this Court, as it was before her Honour, that although not a court, the SSAT was required nevertheless to afford procedural fairness to the parties. The appellant Registrar’s central contention on this appeal is that the father was accorded procedural fairness in respect of the SSAT’s determination of the duration of the child support assessment and that her Honour’s conclusion to the contrary was not open to her and therefore erroneous.
Leave to Appeal
The test traditionally applied to the granting of leave in this court is whether an error of principle or a substantial injustice can be established.[3] Authority suggests that a “less restrictive approach” should apply to the grant of leave in child support matters, primarily because “…it is inevitable that such orders will affect the financial position of the parties and this is a relevant matter in [deciding] whether to grant permission to appeal.”[4]
[3]Rutherford and Rutherford (1991) FLC 92-255, referencing Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170.
[4]Forbes & Bream [2010] FamCAFC 6 at [39].
This court has also expressed its “attraction” to an alternative test for the granting of leave formulated by the Full Court of the Federal Court.[5] That test would see this Court considering whether the original decision was attended by sufficient doubt to warrant it being reconsidered on appeal and whether substantial injustice would occur if a wrong decision was not corrected via the grant of leave.[6]
[5] Jess and Ors & Jess and Ors (2014) FLC 93-620 at [66].
[6] See, for example, Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238.
Despite the express attraction to that formulation of the test, “…final determination of the issue [was] best left for another day when it can be fully considered by a court as an integral part of the matter before it”.[7] The latter statement founds the submission by the appellant,[8] that the test for leave is “unsettled”. Neither the appellant nor either of the two respondents contended that a reconsideration of the erstwhile test should occur in this case. We agree, not least because we consider that leave should be granted on either formulation of the relevant test.
[7] Jess and Ors & Jess and Ors (supra) at [66].
[8]Who is referred to as such rather than as an “applicant” (for leave to appeal) so as to distinguish terminology used in proceedings below or in the SSAT.
A consideration of the content of the tribunal’s requirement to afford procedural fairness to parties in hearings before it is of general importance to the conduct of those proceedings in child support matters. If her Honour erred in that respect, it is important for future decisions of the relevant tribunal that the error be corrected and that the reasons for this Court so concluding are revealed.
We consider, respectfully, that her Honour has erred. In addition, we consider that the “inevitable consequence” of the financial impact upon the parties is an additional important factor in establishing the requisite substantial injustice.
Leave to appeal is granted.
The Appeal
Context
A child support liability was first registered in respect of the child on 22 October 2008, when he was but a few months old. In the intervening seven years, the level of child support payable for him by his father has been the subject of significant dispute with resultant departure determinations by a delegate of the Child Support Registrar.[9] Determinations were made by senior case officers in 2009 and 2010.[10] The duration of the assessment was, in each case, determined to be two years.
[9] CSA Act, Part 6A.
[10] Registration Act, Part VII.
The most recent determination resulted from a further application for departure by the child’s mother on 31 January 2012. Her application sought a departure and resulting assessment with a twelve-month duration. A delegate of the Registrar decided that no ground of departure was established. An objection by the child’s mother was allowed,[11] and the Registrar consequently determined the father’s “adjusted taxable income” and determined that it should apply for a two-year period (concluding on 30 June 2014).
[11] Registration Act, s 80.
The father’s review of that decision to the SSAT resulted in the determination to which her Honour’s orders are directed.[12]
[12] Registration Act, Part VIIA.
The Trial Judge’s Central Findings and Conclusion
After referring to relevant passages of the transcript of the SSAT hearing, her Honour concluded:
17.In this case I accept the [father] failed to disclose relevant and important documents and was completely unhelpful in his participation in terms of the SSAT’s decision making, as indicated in the SSAT’s reasons. I note that he failed to attend a directions hearing and failed to produce various documents that were ordered to be produced and were required to enable the decision maker to understand the applicant’s current financial position.
18.In considering the transcript of the hearing before the SSAT and the submissions made by [counsel for the father], I am persuaded that this does not prevent the [father] from being able to argue that he has not been afforded procedural fairness in the circumstances of this case.
19.I am satisfied that the [father] has not been afforded procedural fairness because the decision maker:
a)Failed to specifically indicate to the applicant that the decision might run beyond 2014 to December 2017; and
b)Failed to invite the applicant to make submissions on the issue of the duration of the assessment period.
Her Honour rejected an argument advanced by then counsel for the Registrar, which is echoed in a central argument by the Registrar before this Court:
20.[Counsel for the Registrar’s] submission was that requiring the SSAT to give notice of the period of departure being considered amounts to requiring the SSAT to expose its thought processes and provision of views. I do not accept that submission. It is a basic requirement that the litigant understands the terms and ambit of the dispute. In the present case, I am satisfied that the applicant did not because he was not ever given an indication that this order specifically could go until 2017. I consider that the applicant’s understanding of the ambit of the order was necessary in the circumstances of this case to ensure he was provided procedural fairness at the hearing.
The Grounds of Appeal
The two grounds of appeal assert that her Honour erred:
1.…in concluding that the SSAT denied [the father] procedural fairness by failing to specifically indicate to [the father] that the departure decision might continue to December 2017; and
2.…in concluding that the SSAT failed to invite [the father] to make submissions on the issue of the duration of the assessment period.[13]
[13] Reasons, at [19].
Counsel for the respondent father contends that the findings by her Honour to which the grounds of appeal are directed, “should be read together as a composite finding”. Counsel for the appellant Registrar agrees, effectively, by conceding that for the appeal to be allowed the appellant must succeed on both grounds.
As we have said, no issue raised on this appeal is directed to the parties’ agreed position below, adopted by her Honour, that the SSAT is required to afford parties procedural fairness in hearings before it. The controversy is, and was below, confined to the content of that requirement.
The High Court has said “[t]he rules of procedural fairness do not have immutably fixed content”.[14] Authority suggests that there is merit in the submission by Counsel for the appellant that procedural fairness “is a practical rather than an abstract concept”. For example, the High Court has pointed out that “[t]he steps [a] Tribunal [is] bound to take in order to afford procedural fairness are not necessarily to be identified with the steps that should be taken by a court deciding a matter by adversarial procedures”.[15]
[14]Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, at [156] per Hayne, Crennan, Kiefel and Bell JJ.
[15]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [24] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
Importantly for this appeal, it has also been held by the High Court that “…the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires”.[16]
[16]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160-161, at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Statutory Framework Within Which the SSAT Proceedings Occurred
The relevant statutory framework in the instant matter is marked by mandated informality.
Section 88 of the Registration Act provides:
88SSAT objective
(1)In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
…
The mandatory objective to which that section refers is underscored, for example, by legislative licence being given for tribunal hearings to be heard, with the parties’ consent, on the basis of written submissions alone.[17] In the instant case, the required lack of formality can be seen exemplified in the hearing being conducted by telephone.
[17]Registration Act, s 103D (See footnote 2. This section applied at the time the proceedings before the SSAT and her Honour).
Further, the Registration Act specifically provides in respect of procedure at an SSAT hearing that:
103N Hearing procedure
(1)The SSAT, in reviewing a decision under this Part:
(a)is not bound by legal technicalities, legal forms or rules of evidence; and
(b)is to act as speedily as a proper consideration of the review allows.
(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
…
The practical effect of determinations made by the SSAT pursuant to the power and discretion given to it is also an important component of the broad statutory context within which the SSAT’s decision is made. The tribunal’s determination becomes an “administrative assessment” within the meaning of the CSA Act once registered by the Registrar.[18] Section 98J of the CSA Act provides that neither party is “…precluded from subsequently making another application in respect of that assessment if, because of circumstances existing at the time when the subsequent application is made, there are grounds for departing from the administrative assessment”.[19]
[18]Section 75(4)(f) of the CSA Act permits the Registrar to amend an administrative assessment to give effect to a decision of, relevantly, the SSAT. Section 75(6) provides that, upon that event, the amended assessment is “taken to be an administrative assessment for all purposes of this Act and the [Registration Act]”.
[19]CSA Act, s 98J. Section 98B CSA Act permits application by the liable parent or carer in respect of an administrative assessment.
Thus, neither party is required to meet any additional requirement for departure emanating from the fact that there is a new administrative assessment deriving from a decision of the tribunal. Any potential for substantial injustice arising from the mandatorily informal nature of the SSAT proceedings and the guiding statutory objectives is ameliorated by the capacity of either party to seek departure in a manner no different from that required of any party seeking to depart from an assessment at any time. That consideration, too, is an important component of the relevant statutory framework.
On a review before it, the SSAT is empowered to reach its own conclusion as to the amount of the assessment and its duration.[20] In Child Support Registrar & Ahern,[21] this Court held:
72.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 [Registration Act], all the powers of the Registrar under Part 6A of the [CSA 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 s103S(1) of the [Registration Act] to set aside the decision which was subject to the review and to substitute a new decision (subject always to procedural fairness considerations).
[20]See as to duration specifically CSA Act s 98S. That section gives power to the Registrar, but the same power is given to the SSAT by reason of (the then) s 103T Registration Act. (As to that section, see footnote 2 above: this section applied at the time the proceedings before the SSAT and her Honour). See generally Child Support Registrar & Ahern (2014) FLC 98-063.
[21] Child Support Registrar & Ahern (supra).
What Was and Was Not Said at the SSAT Hearing?
What was, and was not, said during the hearing by the SSAT with respect to the potential duration of any assessment that might be arrived at by the SSAT was central to the arguments before her Honour and is central to the arguments before us. It is necessary to quote at some length those parts of the transcript of the SSAT hearing where the duration of the assessment was raised or alluded to.
Early in the proceedings, conducted before Member Jensen, the process was explained to the parties.[22] After identifying the documentary evidence, attention again turned to issues of procedure:
MR JENSEN: Okay. They’re the preliminary matters out of the way. As you would both be aware, the child support legislation provides for what is called an administrative assessment of child assessment. It’s administrative because it applies a formula, and for many people, that produces a fair amount of child support payable, but the legislation also recognises that there may be reasons to depart from that administrative assessment. 10 reasons are provided in the legislation, and this case concerns some of those reasons, in particular what’s called reason 1. That’s the costs of contact with the child; reason 6 which relates to child care; and reason 8 which relates to the income and financial resources of the parents.
So what I will be doing is dealing with each of those reasons in turn, and hearing evidence from both of you. Then, towards the end of the hearing, there will be an opportunity to discuss matters more broadly, and to raise any other matters that haven’t already been covered during the course of the hearing …[23]
[22] Transcript of proceedings, SSAT, 3 September 2013, p 3, (“Transcript”).
[23] Transcript, p 6.
Shortly after those statements were made, the father raised the issue of the dates applicable to the assessment: “…what are the dates we’re addressing here today.”[24] That question occurs against a background of the mother’s application for departure referring to a twelve-month assessment period and the ultimate case officer’s decision specifying a two-year period for the determined assessment. Despite the fact that the determined duration differed from the mother’s application, neither party objected to the determined duration of that assessment.
[24] Transcript, p 7.
The tribunal’s response to the father’s question and the interchange with the father is important to the arguments of all parties to this appeal:
MR JENSEN: Well, yes. So what happened was that you will recall that there was a decision – just to go back a bit, there was a decision made in March 2010 that you pay $17,210 per annum, and that was a decision that had effect from 22 January 2010 to 21 January 2012. Neither parent objected to that decision, and so that remained in place. The decision that we’re looking at is a decision that runs from 21 January 2012.
[THE FATHER]: And that goes till when? [25]
MR JENSEN: Well, the decision-maker made a decision until June 2014, but I will just explain that, so the tribunal can go, in making a new decision – if it does make a new decision – the tribunal can make a decision at the earliest from 18 months prior to when [the mother] lodged her application. So in theory it could be from mid-2010. However, there was that earlier decision that was in place, and neither parent objected to that, and so it would be unusual – very unusual – for the tribunal to make a decision prior to 21 January.
[THE FATHER]: I didn’t object. I didn’t really realise I could object, and so I probably …
MR JENSEN: So if you think that a new decision should have effect until, you know, prior to that, you can make those submissions, but as a starting point, one could observe that that earlier decision ended on 21 January 2012. The tribunal, if it makes a new decision, can make a decision up until any date it considers reasonable, and in looking at that, there are a few things that the tribunal would consider. On the one hand, it’s obviously undesirable that parents are required to go through this process more than they, you know, should have to.
On the other hand, people’s circumstances change from time to time. You know, the future is unpredictable, and so, you know, they are some of the matters that stop the tribunal from making a decision that has effect too far into the future, but each case is different, and the tribunal considers the circumstances of the case. Does that help in setting some of the guidelines?
[THE FATHER]: Well, I must say, I just – I just wanted to know the dates, so - - -
MR JENSEN: Sure. Okay. So in 2012, what were your costs of contact with – is it [the child S]? Is that - - - [26]
[25] The father’s name has been removed for anonymization purposes.
[26] Transcript, pp 7-8.
Thereafter, the tribunal proceeded to consider the evidence with respect to the departure grounds identified and agitated by each of the parties. That was done, with respect, carefully and comprehensively. At the conclusion of that process, the tribunal asked, by open invitation, each of the parties for their “view on what the final decision should be”. The tribunal turned first to the mother:
MR JENSEN: I don’t think I need to hear from you in relation to that…[27] You indicated that you didn’t think those figures were accurate anyway, so that’s probably as far as we can take it. We’re getting towards the end of the hearing. As I said earlier, if the tribunal makes a new decision, there are a few things to be considered. The first is when the decision should have effect from. Also when it should have effect until, and what the decision is. [Addressing the mother, the tribunal said] …it’s your application. I might hear from you first. Do you have – you don’t have to have a view about what you think the final decision should be, but do you have a view on that?[28]
[27] The mother’s name has been removed for anonymization purposes.
[28] Transcript, p 44.
In addressing the tribunal in response, the mother confined her comments to the appropriate amount of the assessment and what she asserted to be the father’s financial circumstances. She made no submissions as to when any new assessment by the tribunal should commence or when it should conclude.
The tribunal then turned to the father:
MR JENSEN: …do you have a view on what the - and you don’t have to have a view, but do you have a view on what the final decision should be?
[THE FATHER]: I think it should reflect my - my income, that I - 89,000 a year, and she has 100 per cent custody of [S]. I think my travel expenses at least for 2012 should be included in the assessment, and I think special therapy sessions for my son here in [overseas country], as they’re above and beyond the normal expenses of raising a child, should be included. Let me - let me just - two things. My practice was paid off in 2009.[29]
[29] Transcript, p 47.
Thereafter, the father, like the mother before him, returned to statements or submissions that were confined to the amount of any new assessment and what might be described as financial circumstances more generally. No reference was made, either by the tribunal or the father, as to when any such assessment should commence or when it might conclude.
Was Procedural Fairness Afforded to the Father?
The New South Wales Court of Appeal has said:[30]
41.Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act [under consideration in that case], in McKee at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing".
[30] Frost v Kourouche (2014) 86 NSWLR 214, per Leeming JA; Beazley P and Basten JA agreeing.
Critical to the determination of the instant case is what is said by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR:[31]
[9]…Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.
[31]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594.
The trial judge is, with respect, correct in finding at [19] of her Honour’s reasons (quoted above) that the tribunal “[f]ailed to specifically indicate to the applicant that the decision might run beyond 2014 to December 2017”. However, it cannot be said that the tribunal failed to “specifically indicate” that any new assessment by it could extend for an unspecified time into the future. As can be seen in the transcript passage quoted at [30] above, the father (indeed both parties) were told – clearly and specifically – that the “…tribunal, if it makes a new decision, can make a decision up until any date it considers reasonable.” (Emphasis added).
As a consequence, the failure to accord procedural fairness, upon which the conclusion at [19] of her Honour’s reasons must be based, is an assertion that procedural fairness required the tribunal to go beyond the statement just quoted and to “indicate specifically” that the decision could extend to December 2017 (or, perhaps, to a period of that specific length). The difficulty which that proposition confronts is highlighted in written submissions made on behalf of the father before this Court:
…[As] an inquisitorial body with the power to make a range of determinations that might not have been sought by any party, the SSAT will only be able to deliver a “fair’ and “just” mechanism of review if the parties have fair notice of what issues or determinations are “live” for consideration.[32]
[32]First Respondent’s Outline of Argument, p 7 at [24].
The parties here did have “fair notice” of the “issues” or “determinations [which] are ‘live’ for consideration”.
Having received a clear and plain indication that, at issue, was (relevantly) the making of a decision “up until any date [the tribunal] considers reasonable”, the issue did not – indeed could not – change or become any narrower or more specific until such time as the tribunal had arrived at a conclusion (perhaps even a tentative conclusion) that (a) it would make its own assessment and (b) what the duration of any such assessment would be. Until each such conclusion (or, perhaps, tentative conclusion) was reached, requiring specificity of the duration of the assessment is to require the tribunal to reveal its thought processes. Procedural fairness to the parties does not require it to do so.
Put another way, the argument on behalf of the father and the conclusion reached below by her Honour, depends upon a premise that the tribunal had already decided to itself make an assessment and had already decided what the duration of that assessment should be. That premise is not borne out by the transcript and is not sustainable. Indeed, the tribunal was, with respect, careful to engender neither such assumption, caveating any discussion of the prospect of a new assessment with the word “if”. The passage quoted above from page 44 of the transcript when submissions were first invited by the tribunal is a good example. Crucially, when the father himself raised the issue of the duration of any determined assessment, the same caveat is given by the tribunal.
The argument by counsel for the father before us was that the SSAT’s determination of a five-year duration was a period “…about which no party had made submissions or sought orders, about which no prior decision-maker had made orders, and which the SSAT itself did not raise for the parties’ consideration.”[33] This appears to have been embraced by her Honour at [15] of the reasons. The matters there raised are, with respect, not to the point. The issue live before the tribunal was not whether date ‘x’ should be preferred over date ‘y’ for the duration of an assessment already made or foreshadowed. The issues live before the tribunal were whether it should itself arrive at an assessment; if so, in what amount; and, if so, the application of that assessment “up until any date it considers reasonable”.
[33] First Respondent’s Written outline of Argument, p 1 at [1].
Indeed, reference to what was said by French CJ and Kiefel J in SZGUR quoted above might be seen to found an argument that the tribunal went further in according procedural fairness to the father in this respect than what was required. The father is a person experienced in challenging child support assessments. He did not object to the earlier determination by the Registrar that an assessment should apply for two years despite the mother’s application seeking a one-year duration. It might be argued, adapting the words of their Honours in SZGUR quoted above, that the critical issues before the SSAT were “apparent from the nature of the decision or the terms of the statutory power”.
Similar considerations to those just discussed can be seen to apply to the second of her Honour’s two central conclusions at [19] which are the subject of specific challenge in ground 2.
It cannot be said that the tribunal failed to invite the father to make any submissions. Nor can it be said that the tribunal failed to invite the father to make submissions on all such matters as the father might choose. Reference to the transcript reveals plainly that the tribunal did both. As a consequence, her Honour’s conclusion is dependent upon an asserted obligation on the part of the SSAT to go beyond the invitation to make any such submissions as might be desired and to include an obligation to invite submissions on a specific aspect of the decision.
Again, any such conclusion assumes a premise that is not open by reference to the proceedings before the tribunal. The premise can be seen exemplified at [20] of her Honour’s reasons earlier quoted. Her Honour concludes that because the father was “not ever given an indication that this order specifically could go until 2017”, the “basic requirement that the litigant understands the terms and ambit of the dispute” had not been met. But, the order “could go until 2017” was never part of the “terms and ambit of the dispute”, nor could it be until the tribunal had (a) determined to make an assessment and (b) determined its duration (or, perhaps, noting in particular the informal nature of the hearing, given a tentative indication as to each). Any assessment was prospective and no conclusion, either tentative or otherwise, had been expressed as to whether an assessment would be made. Consequently, no conclusion, tentative or otherwise, had been given as to the prospective duration of any assessment or the parameters of any such period. The terms and ambit of the dispute were, relevantly, that if the tribunal arrived at its own assessment, it could provide for that assessment to apply “…up until any date it considers reasonable”.
Even if the obligation upon the tribunal extended to inviting the parties to make specific submissions about specific aspects of the issues live between the parties (which we doubt), any such obligation cannot have extended to matters that remained, as yet, within the thoughts of the tribunal.
As we have said, it cannot be said that the parties were not aware that a live issue before the tribunal was the duration of any assessment that might be arrived at by the tribunal; the parties were specifically made aware of that fact. A “fair hearing” and the “avoid[ance] of practical injustice” required the parties to be afforded the opportunity to make all such reasonable submissions about all such matters as they might reasonably desire relevant to the issues live between them. That opportunity was given.
In our view, it cannot fairly be said by the father:
· that he was not made aware of the fact that any new assessment if made could extend into the future. The terms in which the tribunal made the father aware of that were clear and unequivocal; or
· that he was not afforded the opportunity to say all that he wanted to say in respect of any issue live before the tribunal; or
· that his attention was not directed to all of the issues relevant to the tribunal’s decision.
The issues just discussed sit within the legislative framework to which we have earlier made mention. The SSAT proceedings did not have the strictures and formalities of court proceedings. Those proceedings did not give rise to orders bringing ostensible finality to fundamental rights. The proceedings were mandatorily informal. They gave rise to determinations which, ultimately, would become a child support assessment in respect of which no additional requirements for departure pertained as a result of the SSAT process. The legislation’s requirements in that respect are identical irrespective of any other decision as to duration that might have been reached.
We are unable to see any “practical injustice” or unfairness in the hearing conducted by the tribunal. Further in that respect we have not been referred to any evidence or submissions before her Honour by which it was then, or is now, contended that the opportunities said to be denied would have, or could have, been productive of matters which may have impacted on any decision as to the duration of the assessment.[34]
[34] See, analogously, Frost v Kourouche (supra) at 224.
Conclusion
We consider with respect that it was not reasonably open to her Honour to conclude that the SSAT did not afford the father procedural fairness. Error is established.
Her Honour’s orders should be set aside. The decision of the SSAT made 3 September 2014 will therefore stand.[35]
[35] Registration Act, s 107A(5).
Costs
The appellant Registrar and the second respondent mother each seek costs as against the first respondent father in the event that the appeal is successful.
Section 111E(1) of the Registration Act provides that the Registrar “may intervene in, and contest and argue any question arising in, a proceeding…” under that Act with the consequence of having “…all the rights, duties and liabilities of a party”. That includes the right of a party to apply for costs.
The Registrar’s application is based largely, if not solely, on success in the appeal. Section 117(2A)(e) of the Family Law Act 1975 (Cth) (“FLA”) is expressed in the negative (“whether any party has been wholly unsuccessful”). It can be said that the respondent father has been wholly unsuccessful. That factor can be, and very often is, centrally important in considering the application of s 117(2A) to appeal proceedings. However it is always but one factor to be considered. The Registrar litigates with the resources of the Commonwealth or, perhaps more accurately, a Commonwealth agency. The respondent father is not legally aided, (ss 117(2A) (a) and (b)). No conduct on the father’s part in relation to the appeal looms as relevant, (s 117(2A)(c)). The resolution of the issue raised by this application for leave to appeal is of general importance, (s 117(2A)(g)). Upon a consideration of all matters we consider relevant pursuant to s 117(2A) of the FLA, we conclude that as between the Registrar and the father, each party should bear their own costs.
Like the Registrar, the second respondent mother’s application for costs as against the father is based largely, if not solely, on success in the appeal. The mother is legally aided; the father is not. The appeal record reveals the father to be in a stronger overall financial position than the mother. The appeal and the litigation preceding it, pertains to the responsibility of each of two parents to support their child in circumstances where that responsibility is mandated as taking priority over other financial commitments. While the mother has, of course, a legitimate interest in seeking to set aside her Honour’s orders, she does so as a respondent in circumstances where the Registrar “made the running” in respect of the appeal and, in doing so, sought to, as it were, protect the assessment made in the mother’s favour by the SSAT. Upon a consideration of all matters relevant pursuant to s 117(2A) of the FLA, we consider that as between the respondent mother and the father, each party should bear their own costs.
Can and Should Costs Certificates Issue?
We understood the Registrar to apply for a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981(Cth) (“Costs Act”) in the event that this court determined that each party should bear their own costs.
In Child Support Registrar v Ahern,[36] it was held that s 14 of the Costs Act precluded a certificate being granted to the Child Support Registrar.
[36] Child Support Registrar v Ahern (supra).
We also understood the mother to apply for a certificate. By reference to the record, we also understand her to be represented by solicitors in the employ of the Legal Aid Office of Queensland. In those circumstances, s 14 of the Costs Act also precludes the mother from being granted a certificate.[37]
[37] Yates & Yates [2012] FamCAFC 219; Maluka & Maluka [2011] FamCAFC 187.
We record our gratitude for the helpful written and oral submissions by each of the parties in this appeal.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 October 2015.
Associate:
Date: 23 October 2015
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