Conway and Child Support Registrar and Clivery (SSAT Appeal)
[2008] FMCAfam 896
•28 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONWAY & CHILD SUPPORT REGISTRAR & CLIVERY (SSAT APPEAL) | [2008] FMCAfam 896 |
| CHILD SUPPORT – Appeal from decision of SSAT – appeal against decision of Child Support Registrar to register orders made in the Family Court on child support register. |
| Child Support (Registration and Collection) Act 1988, ss.37, 71A Child Support (Assessment) Act 1989, ss.123, 124 Family Law Act 1975, s.66E |
| LDME & JMA(SSAT Appeal) [2007] FMCAfam 712 DMW & CGW (1982) 151 CLR 491 Caska & Caska (2002) FLC 93-092 |
| Applicant: | MR CONWAY |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS CLIVERY |
| File Number: | BRC 9 of 2008 |
| Judgment of: | Slack FM |
| Hearing date: | 30 July 2008 |
| Date of Last Submission: | 30 July 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 28 October 2008 |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | Anne Marie Proctor & Associates |
ORDERS
That the Appeal from the decision of the Social Security Appeals Tribunal filed on 2 January 2008 be dismissed.
That the Applicant pay to the first and second respondent the sum of $205 for costs pursuant to order dated 2 June 2008.
IT IS NOTED that publication of this judgment under the pseudonym Conway & Clivery is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9 of 2008
| MR CONWAY |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS CLIVERY |
Second Respondent
REASONS FOR JUDGMENT
In this appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 28 November 2007, the applicant (conducting the appeal in person) relied on a number of grounds in the Notice of Appeal, namely:
a)A defect in the legal process occurred in the Tribunal hearing caused by the decision of the Tribunal’s Presiding Officer, Ms Ryan, to refuse to evidence and submission from the applicant either in respect of identifying the precise matters before the Tribunal (to include the validity of the order in respect to the Child Support Agency, the administrative classification of the airfares and the formula applied by the Agency). As a result of that defect, the Tribunal was unable to accept sworn evidence specifically addressing matters of relevance to orders made under Division 5 of the Act and specifically, in respect of issues demonstrating failures of both the current order and the administration of the Child Support Agency in respect of sections of the Act including, but not limited to, s.121, 122, 123, 124, 125, 126, 127 and 128.
b)Apart from the Appeal matter noted immediately previously, the Tribunal made further errors in law in finding the order made by Justice Waddy on 6 March 2006 was to apply to the Child Support Agency as if it were an order under s.124(1) of the Act due to the following facts that failed to be considered by the Tribunal:
i)Division 5 of the Child Support (Assessment) Act 1989 provides for child support payment in a form other than periodic payments and it is a fact that the claims made by Ms Clivery in respect of airfares occur on a period basis, thus making any claims and the Agency’s processing contrary to the intentions of the Act;
ii)Proceedings before Justice Waddy on 6 March 2006 demonstrates specific failures in respect of requirements of orders arising from Division 5 of the Act, specifically failure to consider relevant matters specified in s.121, 122, 123, 124, 125, 126, 127 and 128.
The first and second respondents seek that the appeal be dismissed.
Background
The applicant and the second respondent are the parents of [S] (hereafter “the child”) born 17 September 1999.
The child lives with the applicant pursuant to an order of the Family Court of Australia, Canberra dated 1 September 2005.
The following facts do not appear to be in dispute.
Parenting orders were made on 1 September 2005 by Justice Waddy in the Family Court of Australia in Canberra. The effect of those orders was that the child was to live with the applicant. Until those orders, the child lived with the second respondent.
Relevantly, Order 17 of those orders provided:
That the Father be responsible for meeting the expense of air travel for the child between Brisbane and Canberra to facilitate contact or, in the event the Mother relocates to Sydney, between Brisbane and Sydney.
A child support assessment (pursuant to a decision dated 30 November 2005 by SCO Doyle of the Child Support Agency) issued taking into account the changed arrangements for the child pursuant to the orders of Justice Waddy.
On 6 March 2006, Justice Waddy made further orders (“the 6 March 2006 orders”). Relevantly, Order 1 of those orders and in the notation by the Court on those orders were:
1.That from the monies the Wife pays by way of child support, all costs of travel paid by her for contact arranged in accordance with Court orders shall be deducted from any assessment as she may be assessed by the Child Support Agency to be liable for…….
3.NOTE that UNTIL FURTHER ORDER the Mother is to book and pay for the child’s airfares in accordance with these orders.
This order was “registered” with the Child Support Registrar on
20 March 2006.
Apparently, initially, the Child Support Registrar treated the payments of airfares made by the second respondent for the cost of contact in accordance with s.71A of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”).
However, on 10 August 2006, the Child Support Registrar made a decision that any payments of airfares made by the second respondent for the purpose of contact for the child should be treated in a way that the annual rate of child support payable by the second respondent should be reduced by the amount of the airfare paid by the second respondent as and when paid for any relevant child support period (see page 140 of the 110K documents). As I understand it the child support register was and is amended to record the payments made for the airfares by the second respondent and to correspondingly reduce the amount of child support payable.
On 13 September 2006 the applicant lodged an objection against the decision of the Child Support Registrar to treat the 6 March 2006 orders in that way (see page 2 of the 110K documents).
On 17 July 2007 the Child Support Registrar refused the objection (“the objection decision”).
The applicant appealed the objection decision to the SSAT.
Grounds of Appeal
From his Notice of Appeal and submissions in the matter, it would appear in general terms that the applicant raises two grounds of appeal:
a)That he was not accorded procedural fairness in that the Presiding Officer refused to afford the applicant the opportunity to be heard on the issue as to whether the Child Support Registrar was entitled to change or reduce the child support payable by reason of the orders of 6 March 2006.
1. Refused to evidence and submission from the applicant either in respect of the identifying the precise matters before the Tribunal (to include the validity of the order in respect of the Child Support Agency, the administrative classification of the airfares and the formula applied by the Agency.
b)The Tribunal erred in treating the order of Justice Waddy as if it were an order made under s.124(1) of the Assessment Act and in treating it as an order under s.124 of the Assessment Act the Child Support Registrar wrongly changed the child support assessment.
The crux of the applicant’s argument would appear to be that the Child Support Registrar did not have the power to register and/or treat the orders made by the Family Court on 6 March 2006 to allow those payments to be deducted directly from the child support payable under the assessment.
The 6 March 2006 orders
It seems clear and accepted that Justice Waddy, in making the orders that he did on 6 March 2006, was not making orders under the Child Support Act (see page 42 of the s.110K documents). Indeed, as Justice Waddy correctly identified, there was no application before him pursuant to the Child Support legislation. The applications that were before Justice Waddy relevantly were an application by the second respondent for “make up contact” and the response by the applicant seeking the discharge or variation of Order 17 of the final orders. His Honour made “interim” orders in those applications. As I understand it, the Family Court has never finally determined the applicant’s application to discharge or vary order 17.
An argument advanced by the applicant seems to be that the Family Court is constrained by s.66E of the Family Law Act from making a “child maintenance order” where there was an administrative assessment in place and hence Justice Waddy had no jurisdiction or power to make the order that he did. Although I acknowledge that there may have been some confusion about the making of the relevant orders, it seems reasonably clear that His Honour was not making “child maintenance orders”. Rather, he was making orders about the responsibility for the costs of facilitating the contact between the child and her mother. In any event the High Court has made it clear that an order of the Family Court of Australia, as a superior Court of record, even if the order is made in excess of jurisdiction remains a valid and binding order until set aside on appeal or prerogative writ (DMW and CGW (1982) 151 CLR 491 and see also Caska and Caska 2002 FLC 93-092.)
As I understand the further argument of the applicant, if it is that the orders were not “child maintenance orders” then the Child Support Registrar had no power to amend or vary any child support payable.
The Child Support Registrar (as does the second respondent) submits that the Child Support Registrar was entitled to vary the child support register to give effect to those orders pursuant to s.37 of the Collection Act which provides as follows:
37.Registrar may vary Child Support Register to give effect to court order etc.
Where the Registrar is of the opinion (otherwise than because of the receipt of an application or notice (as the case may be) under sub-section 33(1), 34(1) or 35(1) or (2)):
(a)that, under this Act, the Assessment Act, the Family Law Act 1975 or the law of a State or Territory:
(i) an order has been made by, or registered in, a court, or;
(ii)a maintenance agreement has been registered in, or approved by, a court;
and the order or agreement varies or otherwise affects a registered maintenance liability; or
(b)that an affecting event in relation to an enforceable maintenance liability has happened:
the Registrar shall make such variations (if any) to the particulars entered in the child support register in relation to the liability as the registrar considers necessary or desirable to enable the order or agreement to be given effect to under this Act or to take account of the happening of the event, as the case may be.
It would seem clear that the order was made “under the Family Law Act” and “affects a registered maintenance liability”. Once those circumstances arise then it seems clear that the Registrar has a statutory obligation to vary the particulars on the child support register.
The discretion (if there is any) of the Registrar to vary the register is not limited to orders made under the Collection Act or the Assessment Act [see s.37(a)]. It is also apparent that the Registrar can vary the register if the Registrar is “of the opinion” that an order made under the Family Law Act1975 “effects a registered maintenance liability”.
As I understand the applicant’s argument, it is that the Registrar could not have been of the opinion that:
a)the order was made under the Assessment Act or the Collection Act because it is agreed that the application did not proceed with respect to either of that legislation;
b)could not have been made under the Family Law Act because the Court has no power to make such an order pursuant to s.66E.
It seems clear that Justice Waddy was not making child maintenance orders. That does not mean though that Justice Waddy did not have the power to make the order that he did.
It seems accepted by the applicant and both respondents that the SSAT did err in taking account of s.124 of the Assessment Act. It is clear that there was no application before Justice Waddy pursuant to s.123 of the Assessment Act and he did not make any order pursuant to s.124 of the Assessment Act. It is also clear that Justice Waddy was not making orders for the provision of child support. This was not an order that was intended to change or amend the child support assessment. It also seems to be accepted that the error of law disclosed in the reasoning of the SSAT means that it failed to construe properly the legislative provisions applicable to register and give effect to the orders.
It was submitted on behalf of the first respondent that finding an error of law has been made by the SSAT does not inevitably lead to the decision being set aside. In that regard the first respondent relies upon the submission on the statement in LDME & JMA(SSAT Appeal) [2007] FMCAfam 712 where it was held:
37.Three points may be made about the Court’s powers in a s.110B appeal.
38.First, the use of the word “may” clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).
39.Second, the power to make such order as the Court thinks fit is qualified by the words ‘by reason of its decision’. The ‘decision” in this context is the decision on the hearing and determination of the appeal (s.110F(1)), the appeal being “on a question of law” (s.110B). Thus, the orders made must flow from a finding in favour of the Applicant on an identified question or questions of law.
40.Third, the particular power under s.110F(2) to make the orders specified in that sub-section does not limit the general power under s.110F(1) to make such order as the Court thinks appropriate by reason of its decision on the appeal.
…..
90.As earlier mentioned, the finding of error on a question of law does not necessarily mean the appeal must succeed. The impact of the error of law on the ultimate decision must be considered in determining whether the appeal should be allowed, and if so, the order that should be made.
The first respondent (and second respondent) therefore submit that even if I am satisfied that there was an error of law due to the failure to properly construe the legislative provisions relevant to the hearing in the SSAT, that I should exercise my discretion not to set aside the determination because the same result would inevitably be achieved.
Decision – Discussions and conclusions
I am satisfied that the reasoning of the SSAT does demonstrate an error of law in that the SSAT failed to properly construe the legislative provisions applicable to the applicant’s application.
The issue that should have properly been considered by the SSAT was whether the Child Support Registrar was entitled to amend the child support register to give effect to the orders in the way that it did, namely, to directly reduce the amount of child support payable under the child support assessment.
Having regard to my reasons, I am satisfied that:
a)The Child Support Registrar was, pursuant to s.37 of the Collection Act, able to, and indeed may well have been obliged to, amend the register in the way that it did and the orders clearly anticipated a direct reduction in the amount of child support payable under the assessment having regard to the payment of the airfares.
b)It is clear both from the transcript before the SSAT and indeed throughout that the applicant has articulated the argument that the Child Support Registrar was not entitled either to amend the register or to treat the orders in the way that it did, namely to deduct those payments directly from the child support assessment.
c)Notwithstanding the fact that the SSAT may not have properly understood the applicant’s arguments, given that it adopted a wrong approach to the legislation in relation to the Appeal, nevertheless, I do not consider that the applicant’s argument which is an argument based around the treatment by the Child Support Registrar of the orders that were made by the Family Court can inevitably succeed.
d)I accept that I have a discretion notwithstanding coming to a conclusion that there has been an error on a question of law, I can in the exercise of my discretion, affirm the decision of the SSAT for the reasons I have given.
I do not consider that the applicant’s argument can succeed when a proper application of the provisions of the Collection Act is applied and hence I would exercise the discretion to affirm the decision.
In the event that I am wrong in that approach, I can indicate that, even if I allowed the matter to succeed, I would not remit the matter for further determination before the SSAT and I would come to a conclusion based on the reasoning I have already provided that the Child Support Registrar was entitled to amend or vary the register to give effect to the orders of Justice Waddy and it was proper and appropriate for the Child Support Registrar to give effect to those orders by amending the particulars on the Register by directly reducing the amount payable by way of child support under the assessment by the amounts paid by the second respondent in respect of airfares.
Costs
An order was made on 2 June 2008 that the “appellant pay the costs of the respondent mother and the Child Support Registrar in accordance with the Federal Magistrates Court Scale to be fixed at the hearing of the matter on 20 June 2008”.
I intend to order the amount fixed in the sum of $205 being the amount under the scale for a short mention
Although the respondent mother and the Child Support Registrar were ready and prepared to conduct a hearing on the application, I consider that they were not substantially prejudiced by the adjournment. Any preparation that was done for the hearing was needed to be done for the hearing when it did occur in any event.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 28 October 2008
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