CMW22 v Administrative Appeals Tribunal

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Federal Circuit and Family Court of Australia

(DIVISION 2)

CMW22 v Administrative Appeals Tribunal [2022] FedCFamC2G 767

File number(s): SYG 1028 of 2022
Judgment of: JUDGE STREET
Date of judgment: 12 September 2022
Catchwords: ADMINISTRATIVE LAW – Child Support – summary dismissal- no question of law- not proper matter for transfer to the Federal Court of Australia- no reasonable prospect of success   
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 42A (4)

Family Law Act1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143, 153

Judiciary Act 1903 (Cth) s 78B

Marriage Act1961 (Cth)
Cases cited:  Spencer v Commonwealth [2010] HCA 28
Division: Division 2 General Federal Law
Number of paragraphs: 28
Date of hearing: 12 September 2022
Place: Sydney
Solicitor for the Applicant: In person
Solicitor for the Respondents: Mr R Harvey

ORDERS

SYG 1028 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

CMW22

Applicant
AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

12 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The amended application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

  1. On 13 July 2022, these proceedings were commenced by Notice of Appeal in which the applicant, who the Court relevantly notes has a disability, identified a desire to bring proceedings against the Administrative Appeals Tribunal (“the Tribunal”) and the Child Support Registrar (“the Registrar”).

  2. The Notice of Appeal sought to agitate relief in the nature of dismissing the Tribunal’s decisions. This appeared to refer to a recent decision of the Tribunal which held that it did not have jurisdiction, and an earlier decision of the Tribunal concerning a decision in respect of spousal maintenance. Relief is also sought in the nature of a declaration that the Polish order for spousal maintenance was not registered in Australia. This declaration seeks to agitate the substance of earlier proceedings that were determined by Judge Scarlett. The third declaration appears to be an appeal by the applicant for financial redress arising out of a believed infringement of international law. 

  3. The Notice of Appeal that was originally filed purported to identify constitutional issues, none of which could be said to meet the criteria required under s 78B of the Judiciary Act 1903 (Cth) of a real question arising under the Constitution warranting the taking of any steps under that provision. The earlier grounds of the appeal identify seeking to agitate denials of natural justice and alleged errors of law, an alleged breach of the constitutional…

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Details
Case
[2022] FedCFamC2G 767
Decision Date

CaseChat Overview and Summary

In the case of CMW22 v Administrative Appeals Tribunal, the applicant sought to appeal the dismissal of an application for review of a decision made by the Administrative Appeals Tribunal (AAT). The dispute centres around the applicant's contention that an amount of $4,548.46 was not repaid to them, which led to a nullification of a prior AAT decision from 2014. The applicant argued that the 2016 decision by the AAT, prompted by evidence from the Polish Central Authority, rendered the 2014 decision ineffective. The Tribunal, however, determined that it lacked jurisdiction to review the 2014 decision and dismissed the applicant's application under section 42A(4) of the Administrative Appeals Act 1975 (Cth).

The legal issues before the court involved the interpretation of the AAT decision and whether the applicant's contentions about the repayment of funds and the nullification of the 2014 decision constituted a properly arguable case. The court had to determine whether the applicant's amended Notice of Appeal disclosed a reasonably arguable case and if the court had the jurisdiction to transfer the matter to the Federal Court of Australia, given the lack of subject-matter jurisdiction in the current proceedings. The court also needed to consider whether the AAT's finding of no jurisdiction was correct and if the applicant's underlying concerns about the outstanding arrears from the Polish maintenance order could be addressed within the court's jurisdiction.

The court found that the applicant's contentions did not establish a proper federal matter that had any reasonable prospect of success. The court held that the AAT's finding of no jurisdiction was not subject to question and that there was no apparent issue of law to be reviewed. The court noted that the underlying concern seemed to be the outstanding arrears from the Polish maintenance order, but this did not provide a basis for the court to exercise its jurisdiction. Consequently, the court concluded that the applicant's amended Notice of Appeal did not meet the necessary criteria for clarity and did not disclose a reasonably arguable case. The court further determined that there was no proper matter before it that could be transferred to the Federal Court of Australia.

The court dismissed the appeal and did not make any orders for the transfer of the matter to the Federal Court of Australia, given the absence of a proper federal matter. The court's decision was based on the lack of a reasonably arguable case and the absence of jurisdiction to review the AAT's decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first ground of appeal contend that a particular amount was not repaid. The applicant’s three grounds in the original Notice of Appeal are as follows:1.The documents provided by Applicant and Child Support Registrar indicated that following receipt of further evidence from the Polish Central Authority in 2016 a further decision was made, on 6 September 2016, to end the spousal maintenance order from 17 May 2011 as a result of an amount of $4,548.46 was repaid (it was not-Applicant) to [CMW22] [point 12, AAT decision], and2.This decision, in effect, nullified the 27 August 2014 decision of the AAT that the spousal maintenance order was correctly registered from 7 November 2013 [point 12, AAT decision], and3.The subsequent decision of 27 August 2014 has no practical effect [point 12, AAT decision] There is a reference to the decision made by the Tribunal that it had no jurisdiction, referring to an amount being repaid to the applicant. That decision was made on 21 June 2022 by a senior member of the Tribunal, who was satisfied that the communication from the applicant on 6 January 2022 indicated a desire to lodge an application in relation to a matter that was finalised by the Tribunal in August 2014 and the senior member determined the application was not a reviewable decision, and subsequently dismissed the application under s 42A(4) of the Administrative Appeals Act 1975 (Cth). The reasons of the Tribunal made reference to hearing from the applicant in relation to the nature of the application he wished to advance, which it is apparent concerned the decision made in 2014, and does make reference to the consequences of an order made by the Polish Central Authority in 2016, and a reference to an amount of $4548.26. Given the statement of account by the Child Support Agency, the Court readily infers that this sum of $4548.26was a repayment by re-crediting to the statement of that account to the applicant’s favour, rather than an actual payment to the applicant. Either way, whether there was an actual re-crediting to the statement of account or a payment to the applicant doesn’t identify the nature of the jurisdiction sought to be agitated in this Court. There is no apparent question of law as to the finding of no jurisdiction by the Tribunal. It does, however, appear that the underlying gravamen of the applicant’s concerns appear to be the arrears that are owed by the applicant arising from the registration of the Polish maintenance order that remain currently outstanding. The Tribunal found that it had no jurisdiction to review the decision of 2014, and accordingly dismissed the purported application under s42A(4) of the Administrative Appeals Act 1975 (Cth). The respondents submitted that the amended Notice of Appeal, dated 12 August 2022, disclosed no reasonably arguable case, and failed to meet the criterion of clarity required for a proper question of law. It was submitted that the jurisdiction of this Court had not been properly invoked. It was suggested that this Court could not transfer the matter to the Federal Court of Australia, given that there is no proper matter before the Court. This Court does have a discretionary power to transfer proceedings under s153 of the Act, taking into account the requirements in Part 8 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) even where this Court lacks subject-matter jurisdiction. If the Court were satisfied that there was a proper matter disclosed that might be agitated within the jurisdiction of the Federal Court of Australia, this Court would have power to transfer the proceedings, even be they not properly commenced within this Court. However, it is not apparent that there is any proper federal matter that has any reasonable prospect of success that could be the subject of an order for transfer.

Ratio Decidendi

Legal Principle Established

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