Crowell and Bodrey (SSAT Appeal) - [2012] FMCAfam 870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWELL & BODREY (SSAT APPEAL)

[2012] FMCAfam 870

CHILD SUPPORT – SSAT APPEAL – Second appeal from decision – consideration of grounds of appeal – whether error of law shown – constitution of Tribunal-appeal disallowed.

Child Support (Assessment) Act 1989 (Cth), ss.98S, 117
Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F
Social Security (Administration) Act 1999 (Cth), cl.10

Crowell & Bodrey (SSAT Appeal) [2011] FMCAfam 275
LDME v JMA (SSAT Appeal) (2007) FLC 98-034
Tasman & Tisdall [2008] FMCAfam 126
PJ & Child Support Registrar (2007) FLC 98-035
Byrne & Graham & Anor (SSAT Appeal) [2010] FMCAfam 1116
McCormack & McCormack & Anor (SSAT Appeal) [2011] FMCAfam 963
Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215
Comcare v Broadhurst (2011) 192 FCR 497
Turner v Chaffey [2010] SSATACSA 12
Hattwheel v James [2010] SSATACSA 1
Hadley& Hadley [2008] FMCAfam 1252
Clauson & Clauson (1995) FLC 92-595

Applicant:

MS CROWELL

Respondent:

MR BODREY

File Number:

HBC 919 of 2010

Judgment of:

Baker FM

Hearing date:

10 May 2012

Date of Last Submission:

10 May 2012

Delivered at:

Hobart

Delivered on:

21 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms Crowell in person

Counsel for the Respondent:

Mr Bodrey in person

ORDERS

The Notice of Appeal (Child Support) filed 21 October 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Crowell & Bodrey (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

HBC 919 of 2010

MS CROWELL

Applicant

And

MR BODREY

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal from a decision of the Social Security Appeals Tribunal (“the SSAT” or “the Tribunal”) delivered on 21 September 2011.
The applicant is Ms Crowell (“the mother”). The respondent is Mr Bodrey (“the father”). The appeal relates to the father’s child support liability in respect of the parties’ daughter, X born (omitted) 1999 (“X”).
This is the second appeal from a decision of the SSAT in this matter. The mother’s first appeal was a decision of Bender FM, published under the name of Crowell & Bodrey (SSAT Appeal).[1]
[1] [2011] FMCAfam 275
Both the mother and the father represented themselves at all stages of these proceedings.
The mother relied upon the following documents:
·Notice of Appeal (Child Support) filed 21 October 2011.
·Outline of Case field 10 April 2012.
·Affidavit filed 10 April 2012.
·Financial Statement filed 10 April 2012.
The father opposed the mother’s appeal, but did not make any substantive submissions or rely upon any documents.
Also before the Court was the Decision of the SSAT in respect of its decision made on 21 September 2011 (“the Reasons”). Additionally, the mother filed a copy of a transcript of the subject proceedings (“the Transcript”).

Background

Overview of the dispute between the parties

The parties separated in 1996. Since that time, X has lived with the mother and spent limited time with the father.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCAfam 870
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of Crowell and Bodrey (SSAT Appeal) involved an appeal against a decision made by the Social Security and Tax Appeals Tribunal (SSAT). The appeal was brought by the mother, who argued that the SSAT should have been reconstituted for the second hearing. The Federal Circuit Court of Australia was tasked with reviewing the decision of the SSAT and determining whether the appeal had merit.

The key legal issue before the court was whether the decision of the Principal Member to not reconstitute the SSAT was subject to appeal under section 110B of the Registration and Collection Act. The court also considered whether the failure to reconstitute the SSAT had impacted the fairness of the proceedings. The mother argued that the initial Tribunal's factual findings were required to be re-determined in the second hearing, but the court found that the factual findings were not overturned and did not need to be re-determined. The court found that the mother had not been denied procedural fairness by the SSAT not being reconstituted.

The court held that the decision of the Principal Member was not a decision of the SSAT and could not be reviewed under section 110B of the Registration and Collection Act. The court also found that the mother's argument that she was not given proper reasons for the decision not to reconstitute the SSAT was not established. The court found that the SSAT had provided adequate reasons for its decision by referring to the authority of Comcare v Broadhurst. The court found that the mother had not been denied procedural fairness by the SSAT not being reconstituted.

The court dismissed the Notice of Appeal filed on 21 October 2011. The court found that the appeal was not well-founded and that the decision of the SSAT should be upheld. The court found that the mother had not been denied procedural fairness and that the decision of the SSAT was correct.

Orders

Orders of the court

The Notice of Appeal (Child Support) filed 21 October 2011 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted earlier in these Reasons, s.110B of the Registration and Collection Act provides that:…A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding. (emphasis added) As noted by the Tribunal in its Reasons, the decision of whether or not the Tribunal should be reconstituted was made not by the Tribunal itself, but by the Principal Member. The question of whether or not a decision of the Principal Member is capable of appeal pursuant to s.110B of the Registration and Collection Act was considered by Riethmuller FM in Byrne & Graham & Anor (SSAT Appeal)[26]. His Honour referred to equivalent provisions in the Administrative Appeals Tribunal Act 1975 (Cth), and held that the decision of a Principal Member does not constitute a decision of the “SSAT”, and cannot give rise to review pursuant to s.110B.[27] This decision was affirmed by the subsequent cases of McCormack & McCormack & Anor (SSAT Appeal)[28] and Manchester & Manchester and Ors (SSAT Appeal).[29][26] [2010] FMCAfam 1116[27] Ibid at 37[28] [2011] FMCAfam 963[29] [2011] FMCAfam 1215 Having regard to these authorities, I am of the view that the decision of the Principal Member that the SSAT not be reconstituted is not a decision of the SSAT capable of review pursuant to s.110B of the Registration and Collection Act. This ground cannot succeed. Even if it were capable of review, I consider that these proceedings were not of a kind in which a reconstituted tribunal was warranted. The mother submitted that the initial Tribunal expressed views upon facts which were required to be re-determined in the second hearing. Yet, the factual findings of the Tribunal were not overturned on appeal and did not need to be re-determined. I do not accept the mother’s submission that she has not been afforded procedural fairness by the Tribunal not being reconstituted This ground is not established. The mother submitted that the only advice she received in respect of the reconstitution of the Tribunal was the reference to the authority of Comcare v Broadhurst,[30] a decision of the Full Court of the Federal Court in which the Full Court considered the issue of reconstitution of the Administrative Appeals Tribunal. She submitted that the Tribunal failed to give proper reasons by only referring to that decision and failing to give a clear explanation for its reasons.[30] (2011) 192 FCR 497 The mother referred to Crowell & Bodrey (SSAT Appeal)[31] in which Bender FM applied the reasoning of Riethmuller FM in PJ & Child Support Registrar.[32] At 76 Bender FM held that:Where the decision of a Tribunal has the effect of seriously impacting on the income of a party and his or her ability to properly maintain and support their child, through an increase or reduction of child support, I am of the view that such person is entitled to receive adequate reasons whereby the basis of that decision is able to be discovered and that there will be circumstances in which inadequate reasons from decisions by the SSAT will give rise to an error in law.[31] Above n 1[32] Above n 19

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.