CMW22 v Administrative Appeals Tribunal
[2022] FedCFamC2G 767
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:
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”).
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.
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 legislative power and a provision of the Family Law Act1975 (Cth), none of which identify a matter capable of being understood, let alone a question of law. There’s also an alleged breach of the Marriage Act1961 (Cth), referred to in the grounds of appeal, and a complaint in relation to provisions of the Family and Guardianship Code 1964 (Poland) and a generalised allegation of other alleged infringements of national and international law.
Referenced in the Notice of Appeal as material relied upon is a reference to the decision of the learned Judge Scarlett dismissing the applicant’s application to the Tribunal. Reference was also made to the applicant’s son. . Reference has been made to a decision in Poland and orders in Poland, as well as to the Social Security Appeals Tribunal’s decision that was the subject of the dismissal of the appeal by the learned Judge Scarlett, as well as translations of certain communications.
The applicant also relied upon an affidavit that he filed on 26 July 2022 in support of the Notice of Appeal. That affidavit identified concerns in relation to the need for records from Poland and a proposal to seek a stay of these proceedings pending the obtaining of those records. The affidavit does not elucidate the nature of the subject matter said to be engaged by the applicant within the jurisdiction of this Court. The applicant has filed three other affidavits, all of which has been treated as read before the Court, in response to an application by the respondents for summary dismissal under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The applicant’s affidavit dated 8 August 2022 makes further reference to Article 27 of the Family and Guardianship Code 1964 (Poland), and apparently seeks to re-agitate issues concerning the registration in Australia of the Polish spousal maintenance order that was the subject of the proceedings before Judge Scarlett dismissing the applicant’s application. Concern is also expressed by the applicant in relation to an alleged amount outstanding of $329.40.. The applicant also identifies an assertion that the Commonwealth has deprived him of the sum of $12,219.06 based on the Tribunal’s decision that it didn’t have jurisdiction made in 2022. The foundation for the contention is not apparent. However, these amounts appear to relate to outstanding maintenance owed by the applicant to which the Court will return shortly.
The applicant identifies that he receives support from the Disability Employment Services and attaches a document that purports to be a decision dated 22 September 2020, which again seeks to address the subject matter of the maintenance order that was registered in Australia. The applicant’s affidavit, dated 9 August 2022, contends that the proceedings are ones in respect of which the Federal Court of Australia has jurisdiction, , contending that the proceedings involve questions of international law, but failing to identify the substance of those questions.
The fourth affidavit of CMW22, dated 8 September 2022, advances a claim for a greater amount, being $14,548.98, as allegedly having been “stolen by the registrar and sent to Poland”. The underlying foundation for that contention is not apparent. Whilst there does appear to be outstanding maintenance, there is no apparent question or issue raised regarding any subject matter within this Court’s jurisdiction or within any apparent matter capable of agitation in the jurisdiction of the Federal Court of Australia. The applicant’s affidavit, dated 8 September 2022, then identifies a request for the return of the allegedly stolen funds, being $26,188.09.This appears to be a reference to outstanding maintenance.
It is not apparent why now, in 2022, this Court, or indeed, the Federal Court of Australia, has jurisdiction to entertain any question related to the matters identified by the applicant. No proper question of law is identifiable. No matter enlivening this Court’s jurisdiction between the current parties is identified. There is no arguable matter raised to support the orders sought by the applicant against the current respondents. There is also an assertion, which is a serious allegation of fraud without properly identifying the basis for the allegation or how it engages the jurisdiction.. . Allegations of fraud are ones that must only ever be made where there exists clear and proper evidence to support the allegations.
The allegation of fraud in the present case is unclear and embarrassing, and certainly lacks the specificity required to identify some fraudulent issue enlivening the question of law jurisdiction of this Court in respect of the Tribunal decision. There is a reference to some other proceedings within this Court which are not otherwise identified or supported by any evidence or proper explanation. The existence of other proceedings does not identify how these proceedings become a matter within this Court’s jurisdiction or how there is a relevant federal matter that might be engaged in the jurisdiction of the Federal Court of Australia. The applicant’s affidavit, dated 8 September 2022, does contend that there is an overpayment made in 2010. The nature of that maintenance overpayment, again, has not been quantified or identified in any meaningful way referrable to this Court’s jurisdiction and appears, again, to an attempt re-agitate the subject matter that was the substance of the decision by Judge Scarlett in 2014. The necessary parties to agitate alleged maintenance overpayment are not before the Court and that is not the nature of the process that has been brought by the applicant. No question of law is identifiable by reference to the applicant’s reference to an alleged overpayment.
The applicant’s affidavit, dated 8 September 2022, then identifies a desire to agitate what appears to be an international dispute asserted by the applicant under international law in respect of Australia’s alleged obligations and alleged rights in Poland. The annexures include what appears to be a request made to a Court of the European Union in respect of alleged maintenance money, making reference to a particular cheque amount of $1387.15. There’s further correspondence relating to June 2016 and the maintenance order that was obtained by the applicant’s former spouse in Poland.
Attached to the affidavit is also a document which has a statement period that is dated 20 August 2022 and appears to be a child support account statement identifying that there is an amount of $28,313.20 that remains overdue. The account details identify historic child support that was payable, and that there is a closing balance outstanding by the applicant.
On 12 August 2022, the applicant filed a purported amended Notice of Appeal pursuant to orders that were made on 11 August 2022 as follows:
1.The summary judgment application and determination of jurisdiction is fixed for a final hearing at 9:30am on 12 September 2022 by video and/or audio link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The appellant file and serve an amended notice of appeal and any further affidavit evidence on which the appellant wishes to rely together with submissions as to why this Court has jurisdiction and why these proceedings should not be summarily dismissed on or before 25 August 2022.
3.The second respondent send a letter or email to the appellant identifying an estimate of costs likely to be incurred up to and including the hearing on 12 September 2022 on or before 18 August 2022.
4.Leave is granted to the appellant to file and serve a notice of discontinue of the proceedings without an adverse finding as to costs, if such a notice is filed, on or before 25 August 2022.
On 10 August 2022, the respondent filed a response seeking that the proceeding be summarily dismissed under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”). The amended Notice of Appeal by the applicant seeks a declaration apparently seeking to re-agitate the decision of Judge Scarlett concerning the maintenance payable under the registered Polish order. In the Amended Notice of Appeal, dated 12 August 2022, the applicant raised two questions of law as follows:
1.Whether the second Respondent is obliged by law to make an application to the High Court of Australia to dismiss order [2015] FCCA 1240 to give effect to the AAT decision of 21 June 2022 which is saying that the Registrar’s decision of 6 September 2016 is in effect and it nullifed the 27 August 2014 decision of the AAT which means the decision has no practical effect after the Registar has limted the spousal maintenance pursuant to Section 37 of the CSRC Act 1989 within the Australian Government Child Support only on request under the UNCRAM made by overseas court?
2.Whether the limitatation of spousal maintenance up to 17 May 2011 made by the Child Support Registrar’s decision of 6 September 2016 within the Australian Government Services Child Support Jurisdiction (only) is a proper act under UNCRAM, after the AAT’s approval of the Registrar’s decision by the review 2022/SC023323 under the AAT Act 1975?
The first question of law refers to a concept of the respondents having to move the High Court of Australia to re-agitate the decision of Judge Scarlett. Suffice to say that no proper question of law is disclosed by ground 1, nor is there a question of law to this effect arising from any decision on the face of the proceedings before the Court that this Court has jurisdiction to re-agitate. Insofar as it is seeking to agitate the finding in the recent decision of the second respondent that it had no jurisdiction, the question fails to identify a question of law engaging this Court’s jurisdiction. The Court has taken into account that the applicant is unrepresented but cannot discern an arguable question of law or identify from the Amended Notice of Appeal a jurisdictional matter and basis upon which it could be said the current proceedings have a reasonable prospect of success. The Court is satisfied that the current proceedings are not curable by any apparent amendment.
The proposed question of law in ground 2 refers to the registration of the spousal maintenance order, but fails to identify any proper question of law and seeks, on its face, to re-agitate the subject matter in the proceedings that were before Judge Scarlet.t. However, it is not apparent how the second question could properly engage this Court’s jurisdiction.
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], and
2.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], and
3.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.
The Court accepts the respondent’s submissions that there is no proper question of law that has been raised in these proceedings, and that there is, in the circumstances of this case, no reasonable prospect of success in the proceedings as originally commenced or as identified in the amended notice of appeal. The Court has taken into account the caution and high degree of satisfaction identified in Spencer vThe Commonwealth [2010] HCA 28; (2010) 241 CLR 118 in determining whether proceedings should be summarily dismissed. The Court is satisfied that no proper matter has been identified within its jurisdiction by the Notice of Appeal or the amended Notice of Appeal, and that neither the Notice of Appeal nor the amended Notice of Appeal have any reasonable prospect of success.
The applicant did put submissions to the Court concerning the history of his maintenance dispute and his believed reach of international law. Unfortunately, they are not matters that give rise to disclosing a subject matter capable of being invoked before this Court or, at the high level in which it has been asserted, capable of engaging in the jurisdiction of the Federal Court of Australia making it appropriate to transfer the same. It is not an appropriate exercise of this Court’s powers of transfer proceedings or seek to have removed proceedings into the Federal Court of Australia that, on their face, fail to identify any proper matter, and that have no reasonable prospects of success.
Other submissions were made by the applicant in relation to the decision of the learned Judge Scarlett. The applicant contended that these proceedings should not be similarly dismissed. Unfortunately, the applicant has failed to identify any proper question of law or any arguable error in the decision of the tribunal in holding that it did not have jurisdiction capable of giving rise to a real question of law that could be agitated in this Court. Accordingly, these current proceedings have no reasonable prospect of success and are doomed to failure.
The Court has taken into account that it may be that the applicant, properly advised, can seek to agitate, with relevant parties being properly adjoined, the subject matter of the outstanding child support by appropriate application. This is not such an application. It is not appropriate to permit an amendment in respect of the parties that have been joined in these proceedings for the purpose of seeking to agitate this Court’s statutory powers to revisit outstanding child support debts. The applicant has not taken proper steps with the Child Support Registrar and the other party to the spousal maintenance orders to crystallise a matter that agitates the outstanding debt.
Given the parties and the nature of the process that has been filed, this Court is not satisfied that it would be appropriate to try and identify a new and different case requiring different steps, joinder of a new party, removal of an existing party and unarticulated amendments to facilitate the seeking of appropriate relief before this Court. In the circumstances there would be no utility in allowing further amendment as the Court is satisfied no proper question of law can be identified in the existing proceedings. The Amended Notice of Appeal and the original Notice of Appeal have not reasonable prospect of success.
It is clear that the Amended Notice of Appeal and the original Notice of Appeal do not properly engage this Court’s jurisdiction in relation to the child support legislation with a different relevant party so as to permit identification of an arguable case within jurisdiction concerning the current outstanding debt.
The respondents have made out that the current proceeding has no reasonable prospect of success and should accordingly be struck out.
I certify that the preceding twenty eight (28) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 12 September 2022 Associate:
Dated: 22 September 2022
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