Falconer and Child Support Registrar and Anor

[2015] FCCA 2553

FEDERAL CIRCUIT COURT OF AUSTRALIA

FALCONER & CHILD SUPPORT REGISTRAR & ANOR [2015] FCCA 2553

Catchwords:
CHILD SUPPORT – Appeal – appeal from decision of Social Security Appeals Tribunal – where Child Support Registrar conceded that the Tribunal’s decision reveals an error of law – Tribunal decision set aside – case remitted to be heard again according to law.

CHILD SUPPORT – Application in a Case – where Application seeks review of decision of Child Support Registrar – where Application without jurisdiction – Application dismissed as incompetent.

Legislation:

Child Support (Registration and Collection) Act 1988, (Cth) ss.71C, 71D, 110B, 110F

Appellant: MS FALCONER

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: MR BABETT

File Number: SYC 1242 of 2015

Judgment of: Judge Scarlett

Hearing date: 16 September 2015

Date of Last Submission: 16 September 2015

Delivered at: Sydney

Delivered on: 16 September 2015

REPRESENTATION

Appellant: In person

Solicitor for the First Respondent: Mr Eskerie

Solicitors for the First Respondent: Sparke Helmore Lawyers

Second Respondent: In person

ORDERS

1. The Appellant is granted leave to appeal out of time.

2. The Appeal is allowed.

3. The decision of the Social Security Appeals Tribunal dated 5 December 2014 is set aside.

4. The matter is remitted to the Administrative Appeals Tribunal (Social Services and Child Support Division) for determination according to law.

5. The Application in a Case filed on 10 July 2015 is dismissed as incompetent.

IT IS NOTED that publication of this judgment under the pseudonym Falconer & Child Support Registrar & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1242 of 2015

MS FALCONER

Appellant

And

CHILD SUPPORT REGISTRAR

First Respondent

MR BABETT

Second Respondent

REASONS FOR JUDGMENT

Appeal

1. This is an Appeal against a decision of the Social Security Appeals Tribunal, as it then was, made on 5 December 2014. The Appellant also seeks leave to appeal out of time, as the Appeal has been lodged outside the 28 day time limit.

2. The Tribunal affirmed the decisions of the Child Support Registrar of 15 September 2011 and 10 October 2011 to credit amounts of $433.80 against the liability of the Second Respondent in the Child Support Register.

3. The Tribunal set aside the decisions of 9 November 2011 and 15 June 2012 to credit amounts of $451.20 and $439.60 against the liability of the Second Respondent in the Register and substituted the decisions:

   a)to credit the amount of $11.60 against the liability of the Second Respondent in the Register; and

   b)to refuse to credit the remaining $879.20 against the Second Respondent’s liability in the Register.

Response

1. The Child Support Registrar does not oppose the Appeal being commenced out of time.

2. The Child Support Registrar filed a Response on 8 September 2015 effectively conceding the Appeal. The Response states:

   1. By her Notice of Appeal (Child Support) (“the Notice”) filed on 14 April 2015, the Applicant[1] seeks leave to appeal from a decision of the Social Security Appeals Tribunal (the Tribunal) dated 5 December 2014 (review numbers (omitted) and (omitted)).

   2. The First Respondent accepts that the Tribunal’s decision reveals an error of law in respect of its construction of section 71D of the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”).

   3. The matter concerns a decision that refused to credit prescribed non-agency payments (PNAP) in the amount of $879.20 against the payer’s (the Second Respondent’s) child support liability. Those payments were for school fees that fell within the provision of section 71C of the Registration and Collection Act however the Tribunal exercised the discretion under section71D of the Registration and Collection Act and refused to credit them.

   4. The Tribunal, at paragraph 16 of its decision, found that it was not necessary that the circumstances be out of the ordinary for section 71D to apply. The Tribunal was incorrect in its interpretation of section 71D; and therefore made an error of law.

   5. In construing section 71D the Tribunal should have taken into account the heading in order to find that the circumstances of a particular case must be ‘special circumstances’. The heading provides clarification as to the scope of the section 71D discretion.

   6. As the First Respondent accepts that the Tribunal made an error of law that directly affected the decision, the First Respondent’s position is that the Tribunal’s decision should be set aside and the case remitted to be heard again according to law.

   [1] sic

3. The Response is a clear concession that the Appeal must be successful.

Application in a Case

1. The Appellant also filed on 10 July 2015 an Application in a Case against the same two Respondents in which she sought these orders:

   1. The Child Support Agency’s 3^rd May 2012 Change of Assessment in Special Circumstances Decision to be reviewed by the Court to calculate the child support required by payer Mr Babett as per the formula and guide under the Act(s) and taking into account the special circumstances (agreed by CSA to exist) under the period covered (for 10 March 2011-31 Jan 2013).

   2. Mr Babett to provide full and frank financial disclosure including lodgement of 2013, 2014 and 2015 tax returns to benefit of Court and Child Support Agency.

   3. The Child Support Agency to accurately calculate the child support required as above for 2013 to present.

2. The Application in a Case is supported by an affidavit of the Appellant sworn 9 July 2015. In that affidavit, the Appellant referred to the decision of the Social Security Appeals Tribunal and stated:

   13.If SSAT took into account the decision of 3/5/12 (which it must do as it backdated the Change of Assessment to 10 March 2011), and circumstances at the time of that Decision, then Special Circumstances did exist as they always had.[2]

   [2] Affidavit of Ms Falconer 9.7.2015 at paragraph [13]

3. The Appellant further deposed:

   I have proof of at least ten other CSA staff who agreed the Decision was wrong and advised me to go to SSAT, which I fruitlessly did….

   22.    Advised by CSA that I was unable to go through another change of assessment, I had to go to SSAT but the scheduled April hearing clashed with Federal Circuit Court proceedings and I had to drop the SSAT hearing.[3]

   [3] Ibid at [21]-[22]

4. The Appellant told the Court that her Application in a Case was intended to act as an Amended Notice of Appeal.

Conclusions

1. The Application in a Case is incompetent, i.e. it is without jurisdiction. It cannot act as an Amended Notice of Appeal, as the decision of 3 May 2012 was not considered in the Decision of the Social Security Appeals Tribunal the subject of the Appeal.

2. The Court has no jurisdiction to review a decision of the child support Registrar of this type. The proper course for the Appellant was to seek a review by the Social Security Appeals Tribunal, which she initially did. However, as she deposed in her affidavit of 9 July 2015, she elected not to proceed with her review because the hearing date clashed with proceedings in this Court.

3. It is not open to a party either to bypass the Tribunal and go directly to Court or to add on to an appeal a matter that was never part of the decision appealed against.

4. It follows that there is no jurisdiction to make the orders sought in the Application in a Case and it must therefore be dismissed.

5. The Appeal will be allowed and the decision set aside. The matter will be remitted to what is now the Social Services and Child Support Division of the Administrative Appeals Tribunal to be determined according to law.      

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date: 17 September 2015