Cohen v Child Support Registrar

[2019] FCCA 3328

FEDERAL CIRCUIT COURT OF AUSTRALIA

COHEN v CHILD SUPPORT REGISTRAR & ANOR [2019] FCCA 3328

Catchwords:
CHILD SUPPORT – Application for reinstatement of application to appeal Administrative Appeals Tribunal decision – proceeding previously dismissed in this Court – no jurisdictional error articulated – no reasonably arguable or reasonable prospect of success – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.6.06(1), 6.07(3), 13.03C(1)(c)

Administrative Appeals Tribunal Act 1975 (Cth), ss.44AAA, 44(1)

Family Law Regulations 1984 (Cth), pt 3

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd 43 FCR 289

Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Applicant: MS COHEN

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MR COLSTEEN

File Number: MLG 1874 of 2019

Judgment of: Judge C. E. Kirton QC

Hearing date: 11 November 2019

Date of Last Submission: 11 November 2019

Delivered at: Melbourne

Delivered on: 20 November 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

No appearance by the Second Respondent

ORDERS

1. The Application in a Case filed on 14 October 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1,444.

IT IS NOTED that publication of this judgment under the pseudonym Cohen v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1874 of 2019

MS COHEN

Applicant

and

CHILD SUPPORT REGISTRAR

First Respondent

and

MR COLSTEEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application to reinstate a proceeding dismissed on 9 October 2019 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Rules), on the basis of the Applicant’s failure to attend the first directions hearing.  The Applicant seeks to reinstate the proceeding in order to appeal a decision made by the Administrative Appeals Tribunal (Tribunal) on 16 May 2019 which affirmed a decision to register an overseas maintenance liability (Tribunal Decision).

Synopsis

1. I have determined not to reinstate the proceeding dismissed on 9 October 2019 and to dismiss the Application in a Case filed by the Applicant on 14 October 2019.

Background

1. The Applicant and the Second Respondent[1] are the parents of Mr D, born in … 1995, now aged 24 and Ms E, born in … 1998, now aged 21.  The Applicant resides in Australia and the Second Respondent resides in Country A.

   [1] The Second Respondent has changed her name and gender.

2. On 16 February 2010 the Department of Human Services, Child Support (Child Support Agency) received an application from the Country A Institute for Youth Human Services and Family Law (Country A Institute) on behalf of the Second Respondent for registration of an overseas maintenance liability payable by the Applicant.  The application included a copy of a court order made in Country A on 19 May 2004[2].  On 14 April 2010 the Child Support Agency made the decision to accept this application and recorded the court ordered maintenance and arrears for Mr D and Ms E.  On 3 May 2018 the Applicant objected to this decision and an extension of time was granted on 24 May 2018.  On 21 September 2018 the Child Support Agency disallowed the objection (Objection Decision)[3].

   [2] Tribunal Decision, at [3].

   [3] Tribunal Decision, at [4]-[5].  

3. On 17 October 2018 the Applicant applied to the Tribunal for a review of the Objection Decision.  The Tribunal conducted a hearing into the application on 16 May 2019.  The Applicant gave evidence on affirmation by conference telephone.  Ms B from the Country A Institute made oral submissions on affirmation by conference telephone on behalf of the Second Respondent as her representative[4].

   [4] Tribunal Decision, at [6]-[7].

4. On 16 May 2019 the Tribunal Decision was delivered and the Objection Decision was affirmed[5].

   [5] Tribunal Decision, at [14] and [46-[47].

Procedural History

1. On 14 June 2019 the Applicant filed a Notice of Appeal (Child Support) (Notice of Appeal). 

2. On 25 June 2019 the Applicant filed an Affidavit of Service deposing to service of the Notice of Appeal on the Second Respondent by sending it by post to an address in Country A on 14 June 2019.

3. Service by hand is required for an application starting a proceeding: r.6.06(1) Federal Circuit Court Rules 2001 (Cth), unless the Court authorises service in some other manner: r.6.04 of the Rules. Furthermore, in a child support proceeding, the person serving a document starting a proceeding must not be the party on whose behalf it is served: r. 6.07(3) of the Rules. Service of the Notice of Appeal on the Second Respondent by the Applicant was thereby ineffective.

4. The proceeding first came before the Court on 9 October 2019 for a directions hearing (Directions Hearing).  The Solicitor for First Respondent appeared, however the Applicant did not appear in Court when called outside the Court.  There was no appearance by the Second  Respondent.    

5. The Solicitor for the First Respondent applied for the proceeding to be dismissed pursuant to r.13.03C(1)(c) of the Rules and for costs. Orders were made for the proceeding to be dismissed and for the Applicant to pay the First Respondent’s costs fixed in the sum of $1,444.

6. On 14 October 2019 the Applicant filed an Application in a Case (Application in a Case) seeking that the proceeding be reinstated and that the Order made on 9 October 2019 for the Applicant to pay the First Respondent’s costs be set aside.  The Applicant also filed an Affidavit, sworn and filed by the Applicant on 14 October 2019 (Affidavit of Applicant).

7. On 1 November 2019 the Applicant filed an Affidavit of Service deposing to service of the Application in a Case on the Second Respondent, by sending it by post to an address in Country A on 1 November 2019.  By reason of the matters referred to in paragraph 9, service of the Application in a Case on the Second Respondent was ineffective. 

8. At the hearing of the Application in a Case on 11 November 2019 the Applicant was self-represented and the First Respondent was represented by a Solicitor.  There was no appearance by the Second Respondent.

Jurisdiction of the Court

1. The Tribunal Decision was made by a member of the Tribunal, therefore the Court has jurisdiction: s.44AAA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

2. The Court is limited to identifying an error of law in the Tribunal Decision: s.44(1) and s.44AAA(1) of the AAT Act. While the power to grant relief is broad and includes such order the Court “[…] thinks appropriate by reason of its decision” (s.44(4) of the AAT Act), that power is not unlimited. In Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 the Full Court of the Federal Court said:

   The powers of this court on appeal under s 44 of the AAT Act are limited to consideration of alleged errors of law by the Tribunal and go no further. There is certainly no power to supervise the Tribunal in any other way and in particular, to deal with the merits of the review. The error of law alleged has to be isolated out, a decision made on this question of law and such order made in directions given as are appropriate only to the decision of this question of law, and are not to the decision under review by the Tribunal[6].  

   [6] Minister for Immigration and Ethnic Affairs v Gungor (182) 42 ALR 209, 221 (Sheppard J, Fisher J agreeing).

Consideration

1. In the Notice of Appeal the Applicant sought the following orders:

   1. That the decision of AAT Member Richard Ellis dated 16 May 2019 in affirming the decision to disallow the objection to an improperly registered child support liability be set aside.

   2. That the objection decision dated 21 September 2018 be set aside.

   3. That the overseas maintenance liability registered on 11 April 2010 against the Applicant be deregistered.

2. The Tribunal was limited to considering the issue of:

   […] whether or not the overseas maintenance liability in relation to Mr D and Ms E should be registered and, if so, from what date[7].

   [7] Tribunal Decision, at [14].

3. Consequently the Court does not have jurisdiction to make the orders sought in paragraphs 2 and 3 of the Notice of Appeal.  However order 1 enlivens the Court’s jurisdiction by effectively requesting the Court to quash the Tribunal Decision and remit the matter to the Tribunal to be heard and determined according to law.  

4. The issue that arises for determination before me is whether the proceeding should be re-instated after being dismissed at the Directions Hearing.  The  principles governing an application for reinstatement were considered by the Federal Court in MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 where Ryan J said:

   In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;

   (b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;

   (c)Whether the applicant has a reasonably arguable prospect of success on the substantive application.  As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not there is no purpose in reinstatement (emphasis added)[8].

   [8] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, at [7].

5. I turn now to consider each of these three factors.

Reasonable Excuse for Absence at Hearing

1. The Applicant deposed that she missed the Directions Hearing on 9 October 2019 at 9.30 am as she was unwell that morning.  The Applicant deposed that she rang the Court Registry on the afternoon of 9 October 2019 and was advised to send an email to my Associate to explain the situation.  The Applicant sent an email to my Associate at 4.04 pm on the afternoon of 9 October 2019 which said (omitting formal and irrelevant parts):

   I was unable to attend the directions hearing today due to illness.  I am sorry to have missed it.  Please let me know what I need to do in order to remedy this situation as I am self-represented[9].

   [9] Affidavit of Applicant, at [3] and Annexure “-1”.

2. The Applicant attended upon her doctor the following day and as a result of the medical consultation she obtained a ‘Letter of Support’ dated 10 October 2009 from her general practitioner (Letter of Support) which stated:

   I have attended [the Applicant] on 10/10/2019.

   The patient states that his/her illness commenced on the 9/10/2019.

   In my opinion, the history as stated is consistent with the above and would have necessated (sic) being unable to attend her commitments from 9/10/2019 to 10/10/2019 inclusive[10].    

   [10] Affidavit of Applicant, at [5] and Annexure “-2”.

3. The Letter of Support included a Patient Declaration signed by the Applicant certifying that the information on which the letter of support was based was true and correct.

4. The Applicant deposed that on 10 October 2019 at 4:29 pm she sent an email to my Associate forwarding a copy of the Letter of Support and again apologising to the Court for missing the Directions Hearing[11]. 

   [11] Affidavit of Applicant, at [6] and Annexure “-3”.

5. At the hearing on 11 November 2019 the Applicant tendered a letter dated 8 November 2019 from her general practitioner[12].  In this letter the doctor provided more information about the symptoms that the Applicant had reported to him when she attended upon him on 10 October 2019.  The symptoms recorded by the doctor were consistent with a litigant being excessively worried about an impending court appearance.  At the hearing on 11 November 2019 the Applicant also provided to the Court her account of her distress immediately prior to the Directions Hearing[13].    

   [12] Exhibit App-1.

   [13] Transcript T5:37-47.

6. The Solicitor for the First Respondent advised the Court that on the basis of the Letter of Support[14], the First Respondent conceded that the Applicant had provided a reasonable excuse for not attending the Directions Hearing[15].

   [14] Exhibit App-1.

   [15] Transcript T11:3-5.

7. When the Applicant had composed herself on the afternoon of 9 October 2019, she took steps to contact the Court and advise the Court that she had been unwell.  She attended upon her general practitioner the next day.  The Applicant also took prompt steps to file the Application in a Case on 14 October 2019 to seek a reinstatement of the proceeding.  I have had the opportunity to hear from the Applicant herself about how distressed she was concerning the prospect of attending the Directions Hearing.   I am satisfied that the Applicant has provided a reasonable excuse for her non-attendance at the Directions Hearing on 9 October 2019. 

Prejudice to the Respondents

1. The Solicitor for the First Respondent submitted that the First Respondent conceded that it suffered no prejudice that could not be remedied by an appropriate order for costs[16].  I accept that submission.  I am therefore satisfied that if the proceeding was reinstated, the First Respondent would not suffer any prejudice that could not be compensated for by an order for costs to be paid by the Applicant.

   [16] Transcript T11:3-6.

2. The Second Respondent was not properly served and did not appear at the Directions Hearing.  I refer to paragraphs 8 and 9 above.  I am therefore satisfied that if the proceeding was reinstated, the Second Respondent would not suffer any prejudice.

Reasonably Arguable Prospect of Success

1. I now consider whether if the proceeding was reinstated the Applicant would have a “reasonably arguable prospect of success”[17] in the Appeal or alternatively a “reasonable chance of success”[18].   

   [17] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, at [7].

   [18] MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066, at [18].

Question of Law

1. The Applicant has stated the following as being the Questions of Law:

   1.Whether member Ellis was correct or even able to waive the requirement for a “certificate signed by an officer of a court or by some other authority relating to the order and containing a statement that the order is, at the date of the certificate, enforceable in that jurisdiction” as stipulated under FLR III, Div 1, Section 23 1a(ii) in regards to registration of an overseas child support claim.

   2.Whether member Ellis was correct in holding that matters relating to the amount of the registrable liability could not be considered by the AAT.

   This is to be considered in view of the fact that the Child Support Registrar, acting on advice of the father’s representative, the Country A Institute for Youth Human Services and Family Law, hereafter referred to as the Country A Institute, vary the amount for the child support liability upwards from that specified in the 2004 Country A border handed up at the time when the application for registration was made.  This variation was further affirmed in the Objection Decision. 

2. An applicant may not appeal to the Court because they simply disagree with the decision.  An appeal lies only in relation to a question of law, which must ordinarily be set out with precision so as to ensure the merits of a case are dealt with, not by the Court, but by the Tribunal: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 289, 287.

3. In relation to the first question, I infer that by “FLR III” the Applicant is referring to Part 3 of the Family Law Regulations 1984 (Cth). This argument referred to in Question 1 was raised by the Applicant before the Tribunal and is referred to in the Tribunal Decision at [23] and [24]. The Tribunal referred to this argument put by the Applicant as follows:

   In summarising, [the Applicant] said the other parent, who resides in a foreign jurisdiction, should not have been able to make an application direct to the Child Support Agency[19].   

   [19] Tribunal Decision, at [24]

4. The Tribunal considered the issue of whether there was a registrable overseas maintenance liability in [29] to [31] and whether the liability should have been registered in [32] to [43].  The Tribunal determined that:

   […] the Country A Court order was a registerable overseas maintenance liability under the Act.  A valid application for registration of the court order was made on behalf of Ms C by the Country A Institute[20].   

   [20] Tribunal Decision, at [46].

1. In relation to the second question, the Solicitor for the First Respondent submitted that the issue before the Tribunal was limited to ascertaining whether the registering the Country A maintenance order was correctly done under the relevant legislation.  It was submitted that therefore this aspect of the Appeal had no prospect of success.  I accept that submission.

2. The Tribunal Decision was limited to whether the registration of the Country A order should be registered.  I refer to paragraph 18 above.  The Tribunal specifically records that at the hearing the Applicant raised matters relating to the amount of child support under the court order, as well as the way it was it was calculated and the consequential financial impact upon her[21].  The Tribunal said [at 45]:

   The role of the Tribunal is to review the objection decision.  As the objection decision was in relation to the registration of a registrable maintenance liability, other matters raised by [the Applicant] are not before the Tribunal and cannot be considered in this review.   

   [21] Tribunal Decision, at [44].

Grounds of Review

1. The Grounds of Review constitute 20 paragraphs which are essentially submissions in relation to re-running the hearing before the Tribunal.  The Grounds of Review constitute submissions relating to:

   a)The amount of child support payable;

   b)Impermissible merits review.

2. Judicial review may not be used for a re-evaluation of a finding.  The Applicant’s Appeal appears to be an expression of her disagreement with the Tribunal Decision.  The Grounds of Review are inviting impermissible merits review.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Brennan CJ, Toohey, McHugh, and Gummow JJ said:

   […] The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon a refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court[22]  (footnotes omitted).   

   [22] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272.

1. In Minister for Immigration and Citizenship v SZJSS[23] the Full Bench of the High Court[24] said:

   General principles governing the limited role of the courts in reviewing an administrative error have long been identified.  As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for over turning a judicial decision upon a review.  Further, Brennan J said in Attorney-General (NSW) v Quinn:

   “The merits of administrative action, to the extent that they can      be distinguished from legality, are for the repository of the                relevant power and, subject to political control, for the                    repository alone”[25] (footnotes omitted).

   [23] (2010) 273 ALR 122.

   [24] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

   [25] Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122, at [23].

2. In this case I am unable to ascertain any jurisdictional error articulated  in the first question or from the Grounds of Review.  I determine that the  Grounds of Review relate to matters that were either not before the Tribunal or alternatively constitute impermissible merits review.

3. I am therefore not satisfied that the Applicant has a “reasonably arguable prospect of success”[26] or alternatively a “reasonable chance of success”[27] in the Appeal.

   [26] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530, at [7].

   [27] MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066, at [18].

Conclusion

1. I will therefore make orders to dismiss the Application in a Case.

2. The Solicitor for the First Respondent has sought costs in accordance with the Rules, Schedule 1, Part 2, Division 2, Item 1 in the sum of $1,444. Costs will follow the event and order that the Applicant pay the First Respondent’s costs in the sum of $1,444 will be made.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Date: 20 November 2019