Fawkner & Fawkner & Anor (SSAT Appeal)
[2012] FMCAfam 755
•14 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAWKNER & FAWKNER & ANOR (SSAT APPEAL) | [2012] FMCAfam 755 |
| CHILD SUPPORT – APPEAL – Appeal from decision of Social Security Appeals Tribunal – whether there was any evidence to support a finding of fact – whether SSAT failed to take into account a relevant consideration – merits review – whether denial of procedural fairness – unreasonableness – whether decision was one at which no logical, reasonable or rational person could arrive. EVIDENCE – APPEAL – Appeals from SSAT on a question of law only – fresh evidence – the jurisdiction of the Federal Magistrates Court under s. 110B of the Child Support (Registration and Collection) Act 1988 (Cth) does not permit the reception of further evidence that was not before the SSAT. COSTS – No order for costs – where Second Respondent submitted that appeal should be dismissed without costs. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 71, 71D, 88, 103N, 104, 110B |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Comcare v Moon (2003) 75 ALD 160 Comcare Australia v Lees (1997) 151 ALR 647 LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Servos v Repatriation Commission (1995) 56 FCR 377 |
| Applicant: | MR FAWKNER |
| First Respondent: | MS FAWKNER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 4323 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 10 July 2012 |
| Date of Last Submission: | 10 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2012 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant appeared in person |
| Solicitors for the Appellant: | No solicitor |
| Counsel for the first Respondent: | The First Respondent appeared in person |
| Solicitors for the first Respondent: | No solicitor |
| Solicitor for the second Respondent: | Ms Bell |
| Solicitors for the second Respondent: | Department of Human Services Legal Services Division |
ORDERS
The Appeal against the decision of the Social Security Appeals Tribunal made on 10 June 2011 and dispatched on 21 June 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fawkner & Fawkner & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4323 of 2011
| MR FAWKNER |
Appellant
And
| MS FAWKNER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an appeal from a decision of the Social Security Appeals Tribunal made on 10th June 2011 and dispatched on 21st June 2011 affirming a decision of the Child Support Registrar to refuse to credit the sum of $7,580.00 paid by the Appellant direct to the parties’ daughter as non-agency payments.
By his Notice of Appeal filed on 15th July 2011 the Appellant seeks the one order:
Overturn SSAT decision.
The Appellant relies on the one ground of appeal:
Critical Evidence Ignored.
Background
The Appellant and the First Respondent have a daughter named X who was born (omitted) 1993. She is now an adult.
The First Respondent, applied for an administrative assessment of child support on 27th March 1998. On 4 May 1998 the First Respondent sought that the Child Support Agency should collect the payments of child support payable by the Appellant. Once a registrable maintenance liability is registered under the provisions of s.30 of the Child Support (Registration and Collection) Act 1988 it becomes a debt to the Commonwealth.
The Appellant wrote to the Child Support Agency on 13th February 2011 to have deposits of $6,370.00 that he had made to X’s bank account and cash payments amounting to $1,210.00 made directly to her to be credited as non-agency payments.[1] With that letter he provided a number of bank statements showing deposits to an account at the St. George Bank
[1] A copy of the letter is contained in Annexure “A” to the affidavit of Mr H dated 3 April 2012
The First Respondent did not agree that those payments should be credited as non-agency payments.[2]
[2] Ibid Annexure “D”
On 24th February 2011 the Child Support Agency advised the appellant that his application for the payments to be credited as non-agency payments had been disallowed as there was no mutual intention.[3]
[3] Ibid Annexures “E” and “F”
On 2nd March 2011 the Appellant objected to the Agency’s decision. An Objections Officer disallowed the objection on 10th March 2011, making this finding:
I am satisfied that there was no agreement or mutual intention by both parents that the payments Mr Fawkner made directly to X would be in lieu of child support.[4]
[4] Ibid Annexure “I”
Application to the Social Security Appeals Tribunal
On 21st March 2011 the Appellant lodged an application for review of that decision with the Social Security Appeals Tribunal (SSAT). The Application was heard on 6th May 2011 in Sydney. Both the Appellant and the First Respondent attended the hearing in person and gave evidence.
The Tribunal noted that it had deferred making a decision so that the parties could provide further relevant documents, saying at paragraph 24 of its Decision:
The Tribunal decided to defer the decision so that the parties could obtain and provide documents and bank statements from the St George Bank regarding X’s account. The Tribunal indicated that in particular it would be interested to see letters regarding the establishment of the account and details as to who had access and/or who could operate the account.
Both parties provided a quantity of bank statements and other documents to the Tribunal.
On 10th June 2011 the Tribunal decided to affirm the decision under review. The decision was dispatched on 21st June 2011.
The SSAT Decision
In its Reasons for Decision, the Tribunal set out a relevant history of transactions between the parties and the Child Support Agency.
The Tribunal identified the issue to be determined as:
The question to be decided by the Tribunal is whether the sum of $7,580.00 paid by Mr Fawkner to his daughter X should be credited towards his enforceable maintenance liability as non-agency payments.[5]
[5] Tribunal decision at [8]
Under the heading Information Provided at Hearing the Tribunal set out a summary of the evidence given to it by both the Appellant and the First Respondent. It referred to its decision to defer the decision so that the parties could obtain and provide further documents and described the documents that the parties later produced.
The Tribunal then set out its views about the documents, saying at paragraph 29:
The Tribunal considered that the main points to be drawn from the documents provided by both parties were:
· that Mr Fawkner had made direct deposits to X since 2004;
· that the account had been opened as a (omitted) Account at the (omitted) branch of the St George Bank on 31 August 2001 and it was not a trust account;
· in February 2007 the account changed to a complete (omitted) Account;
· that since 2004 Ms Fawkner had refused to accept the payments made by Mr Fawkner direct to their daughter’s account as child support.
Under the heading Discussion of Evidence the Tribunal found that there was no dispute that between 21st November 2008 and 9th February 2011 the Appellant made direct deposits of $6,370.00 and cash deposits amounting to $1,210.00 into his daughter’s account.
The Tribunal noted the First Respondent’s statements that there was never any mutual agreement that the payments into the child’s account would be accepted in lieu of child support. It said that a statement in the Appellant’s letter to the Child Support Agency and his evidence at the hearing cast doubt as to whether the Tribunal could be satisfied that the First Respondent had ever agreed to accept the amounts paid by direct deposit to X’s account as child support.
The Tribunal noted that the bank documents provided show that X’s account was not a trust account and the First Respondent had consistently denied that she had access to the money in her daughter’s account.
Under the heading Findings of Fact the Tribunal made the following findings:
· 38. Mr Fawkner and Ms Fawkner are the parents of X (born (omitted) 1993).
·39. On 31 August 2001, a St George Bank account in X’s name was opened at (omitted).
·40. Between 21 November 2008 and 9 February 2011, Mr Fawkner made direct deposits totalling $6,370 and cash deposits totalling $1,210 into X account.
·41. Ms Fawkner did not intend that the payments would be accepted as child support payments.[6]
[6] Tribunal Decision [38]-[41]
Under the heading Application of Law and Reasons the Tribunal set out the relevant provisions of sections 71 and 71D of the Child Support (Registration and Collection) Act and stated at paragraph 44:
The key requirements of section 71(1)(a) are that:
· The payee receives an amount or amounts from the payer; and
· That amount or amounts are intended by both the payer and the payee to be partially or completely in respect of the child support liability; i.e. there must have been a mutual intention.
The Tribunal found that:
a)There was no evidence that the payee had ever received or had access to the payments made by the payer to X’s account in the period 21st November 2008 to 9 February 2011;
b)The First Respondent denied that she had ever stated or suggested that the payments made by the Appellant to X would be accepted as child support payments; and
c)The Appellant’s evidence was not persuasive on the above point.[7]
[7] Tribunal Decision at [45]-[46]
The Tribunal was not satisfied that, in all the circumstances, the amounts paid by the Appellant during the period 21st November 2008 to 9th February 2011 should be credited as non-agency payments and affirmed the decision of the Child Support Agency.
The Appeal Against the SSAT Decision
On 15th July 2011 the Appellant filed his Notice of Appeal.
On 28th February 2012 the Appellant filed an affidavit sworn on 23rd February 2012. He filed a further affidavit on 24th April 2012, this affidavit having been sworn on 18th April 2012.
The Child Support Registrar filed an affidavit of one Mr H on 4th April 2012. That affidavit annexed copies of documents relevant to the proceedings before the SSAT.
The First Respondent filed on 18th May 2012 an affidavit sworn or affirmed that same day.
The Second Respondent filed an Outline of Submissions on 5th April 2012.
Evidence and Submissions
The Appellant relied on the following documents:
a)his Notice of Appeal;
b)his affidavit of 23rd February 2012; and
c)his affidavit of 18th April 2012.
The First Respondent relied on her affidavit of 18th May 2012.
The Second Respondent, the Child Support Registrar, relied on the Outline of Submissions filed on 5th April 2012.
Ms Bell, the solicitor appearing for the Child Support Registrar, objected to the affidavits of the Appellant and the First Respondent on various grounds, including relevance, as the affidavits sought to introduce evidence that had not been before the Tribunal. I allowed certain parts of the Appellant’s two affidavits on the basis that they were submissions but rejected other paragraphs relating to events that he claimed to have occurred when the Appeal was mentioned before Emmett FM on 18th November 2011 and 8 February 2012, as such material is clearly irrelevant.
On a similar basis, large parts of the First Respondent’s affidavit were held to be inadmissible on the grounds of irrelevance, as they were largely framed as a reply to contentions in the Appellant’s affidavits which were also inadmissible. Certain parts of the First Respondent’s affidavit were treated as submissions.
The First Respondent says in paragraph 1 of her affidavit:
I make appeal for this case to be dismissed on the basis that no evidence has been suppressed or ignored by either the Child Support Agency or the SSAT and there is no new evidence to warrant further investigation.
The Appellant submitted that the Tribunal had ignored evidence that had been presented to it and said that he had made submissions to the Tribunal that had not been referred to in the Tribunal’s Reasons for Decision. He submitted that nothing that he said had been given any consideration by the Tribunal and he believed that the handling of the evidence was very one-sided.
The Appellant had annexed a written submission to his Notice of Appeal. In that submission, the Appellant claimed that:
a)Critical evidence had been ignored or disregarded by the SSAT;
b)He had made child support payments of $25.00 per week by direct deposit to the Child Support Agency from 27 February 2004 to 1 August 2005, but when those payments stopped being received by the Child Support Agency and “bounced back” he commenced making payments into a bank account set up in 2001 to which the First Respondent and X were signatories;
c)Neither the First Respondent nor the Child Support Agency objected to this practice;
d)Payments were made into the bank account from 19th August 2005 to 5th December 2010;
e)The Child Support Agency was making payroll deductions from the Appellant’s pay from 5th July 2009 to 1 December 2010;
f)Whilst the Child Support Agency was making deductions from the Appellant’s pay between 8th December 2010 and 10th March 2011 he ceased making payments into the bank account;
g)The Appellant submits that the First Respondent was negligent for not making any objection to his method of making child support payments and “irresponsible for not taking control of the child support maintenance payments”;
h)The earlier decision of the Child Support Agency on 4th March 2008 disallowing his claims that payments amounting to $16,000.00 should be credited as non-agency payments was wrong and the Tribunal failed to take that matter into account; and
i)The Tribunal’s finding of “no mutual intention” in respect of non-agency payments is interpreted by the Child Support Agency as “we only sanction what the child support recipient wants”.
The First Respondent was content to agree with the submissions put on behalf of the Child Support Registrar.
Ms Bell, for the Child Support Registrar, submitted that there was nothing to show any improper handling of the evidence by the Tribunal, which had handled the matter properly. The Tribunal had considered the evidence of the bank statements and found that only the child herself had had access to the bank account.
It was further submitted that the Tribunal had correctly applied the provisions of s.71 of the Child Support (Registration and Collection) Act.
In a detailed written submission, Ms Bell put to the Court that appeals from the SSAT to the Federal Magistrates Court are such that the jurisdiction of the Court does not permit the reception of further evidence which was not before the Tribunal (see Servos v Repatriation Commission[8] per Spender J at 385).
[8] (1995) 56 FCR 377
It was submitted that the Appellant’s ground of appeal, that the Tribunal ignored critical evidence, does not disclose any error of law. Whilst it raises a question of law to claim that there was no evidence to support a particular finding of fact, it was submitted that the Tribunal set out evidence at paragraphs [31] to [37] of its decision to support its findings on non-agency payments.
In order to demonstrate an error of law, the Appellant would have to show that there was no evidence before the Tribunal to support a particular finding of fact (Comcare Australia v Lees[9] at 652-653; Australian Broadcasting Tribunal v Bond[10] at 355-356[11]).
[9] (1997) 151 ALR 647
[10] (1990) 170 CLR 321
[11] Incorrectly cited in the written outline of submissions as 335-336
It was further submitted that the Appellant’s written submissions appear to recast his ground of appeal in terms of a failure by the Tribunal:
a)to consider evidence before it;
b)by placing undue weight on evidence before it;
c)to make inquiries with respect to the evidence provided
d)to proceed in a fair and just manner.
Ms Bell submitted that the Appellant cannot argue that the Tribunal failed to take into account a relevant consideration when the material referred to by the Appellant, namely evidence presented from 2004 onwards, predated the deposits the subject of the application for review.
Further, it was submitted that what evidence is to be accepted is a matter for the administrative decision-maker and not for the Court. It is not the function of the Court, when hearing an appeal under section 110B, to review the Tribunal’s findings of fact and substitute its own view of the facts for those of the Tribunal (see Comcare v Moon[12] at [33]). Subsection 103N(2) of the Act provides that the SSAT may inform itself on any matter relevant to the review of a decision it considers appropriate.
[12] (2003) 75 ALD 160
As to the Appellant’s contention that the Tribunal gave improper weight to evidence before it and improperly considered evidence, it is submitted that this is not a question of law. For the Court to question the SSAT’s assessment of the evidence and the weight given to it would lead it to “trespass into the forbidden field of review on the merits” (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs[13] per Mason CJ at 391).
[13] (1989) 169 CLR 379
It was further submitted that the bulk of the Appellant’s submissions seek to raise irrelevant matters outside the scope of a question of law hearing. It is not open to the Court to consider matters that seek to challenge findings of fact made by the Tribunal.
Ms Bell also submitted that it appeared that the Appellant was also alleging that the Tribunal made an unreasonable decision on the basis of the payments that he had made. She submitted, however, that the Appellant was unable to establish unreasonableness. There is a very high burden that needs to be met in order to establish that a decision is so unreasonable that it amounts to a question of law. It is not enough to show that a decision is wrong. The decision must be one at which no logical, reasonable or rational person could arrive on the same evidence (Minister for Immigration and Citizenship v SZMDS[14] at [129]-[133]).
[14] [2010] HCA 16
It is also submitted that the Appellant was contending that he was denied procedural fairness by the Tribunal. It was open to the Tribunal to conduct the hearing in a manner that achieves the objective of being fair, just, economical and quick (see s.103N of the Act). However Ms Bell put to the Court that the Tribunal afforded both parties the opportunity to give oral evidence on oath, and adjourned the proceeding to allow the parties time to gather and present further material. As such, she submits that there was no failure to provide procedural fairness.
It is the Child Support Registrar’s submission that no grounds of appeal have been made out and the appeal ought to be dismissed “without costs”.
The Relevant Law
An appeal to this Court from a decision of the Social Security Appeals Tribunal is an appeal on a question of law. Section 110B of the Child Support (Registration and Collection) Act provides:
A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, o a question of law, from any decision of the SSAT in that proceeding.
Under s.104 of the Act, jurisdiction is conferred on the Federal Magistrates Court, the Family Court of Australia, the Family Court of Western Australia and, in certain circumstances, the Supreme Court of the Northern Territory.
In Carrigan & Fredericks (SSAT Appeal)[15] at [103], [105], [107] and [108], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature:
[15] [2011] FMCAfam 544
103.It is the function of this court to determine whether the decision of the SAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision…
105.An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
· Fails to construe properly the legislative provisions applicable;
· Identifies the wrong issues or asks itself the wrong questions;
· Ignores relevant material or relies on irrelevant material;
· Fails to accord procedural fairness to the party before it;
· Makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic[16]…
[16] Footnote omitted
In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd[17], the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“…the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
108. In summary, an appeal on a question of law:
· is not a review on the merits or a rehearing;
· as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;[18]
· however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
· in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye ‘keenly attuned to the perception of error.’[19]
[17] (1993) 43 FCR 280
[18] See LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 at paragraph 29
[19] [2011] FMCAfam 544 at [103], [105], [107]-[108]
Conclusions
The first matter to be considered is whether the Tribunal properly identified the issue that needed to be decided. The matter had come before the Tribunal as a result of an application for review of the decision of the Child Support Agency not to credit as non-agency payments:
a)Amounts totalling $6,370.00 paid into the bank account of his daughter X;
b)Amounts of cash totalling $1,210.00 which he had given to X in cash.
These payments were made between 21st November 2008 and 9th February 2011. The Appellant applied to the Child Support Agency to credit these payments on 13th February 2011 but the Agency disallowed that claim on 24th February 2011.
The Appellant objected on 2nd March 2011 and the objection was disallowed on 10th March 2011. The Appellant appealed against that decision.
The Court needs to consider:
a)whether the Tribunal correctly identified the issue to be decided;
b)whether the Tribunal applied the law correctly;
c)what evidence the Tribunal considered;
d)whether that evidence supported the Tribunal’s findings of fact; and
e)whether the parties were accorded procedural fairness.
The Tribunal identified the issue to be decided as:
…whether the sum of $7,580 paid by Mr Fawkner to his daughter, X, should be credited towards his enforceable maintenance liability.[20]
[20] Tribunal decision at [8]
I am satisfied the Tribunal correctly identified the issue to be decided.
The Tribunal correctly identified s.71 of the Child Support (Registration and Collection) Act as the relevant law to be applied. The Tribunal set out the requirements of the section as:
· The payee receives an amount or amounts from the payer; and
· That amount or amounts are intended by both the payer and the payee to be partially or completely in respect of the child support liability; i.e. there must have been a mutual intention.[21]
[21] Tribunal Decision at [44]
I am satisfied that the Tribunal correctly identified the law to be applied. It is clear that the Tribunal has not misunderstood the requirements imposed by paragraph 71(1)(a).
The Tribunal considered the oral evidence of both the Appellant and the First Respondent. The Tribunal also considered the documentary evidence of the bank statements and other bank documents produced by the parties.
There is no failure to consider relevant evidence.
The Tribunal made findings of fact at paragraph [29] based on the evidence of the bank statements. In my view the findings of fact were supported by the documentary evidence.
The Tribunal made various findings of fact at paragraphs [38] to [41]. The evidence considered by the Tribunal supports those findings.
The Court must consider whether the parties were accorded procedural fairness. They each gave oral evidence and the Appellant was permitted to give evidence in response.
The Tribunal adjourned the proceedings to allow the parties to produce evidence by way of bank statements and other bank documents.
The Tribunal considered the documentary evidence of the documents produced by the parties and made this decision, based on the inferences it had drawn from the documents produced:
In light of the above, the Tribunal considered that there would be little to gain from either exchanging the documents between the parties and seeking further comment from them or scheduling a further hearing. The Tribunal noted that apart from the circumstances of X’s bank account being opened there was nothing in the additional papers which had not already been canvassed at the hearing or in the documents provided by the Child Support Agency.[22]
[22] Ibid at [30]
In my view, the Tribunal might have considered a more cautious approach by seeking comment from the parties about the documents produced, notwithstanding that the Tribunal formed the view that there was nothing that had not been canvassed at the hearing or in the documents provided by the Child Support Agency. However, neither party has made any submission that they were in any way prejudiced by the Tribunal’s decision not to seek further comment and nothing turns on that issue.
I am not satisfied that there has been any failure to accord procedural fairness to the parties.
The Tribunal’s hearing procedure is prescribed by s. 103N of the Child Support (Registration and Collection) Act:
(1) The SSAT, in reviewing a decision under this Part:
(a)is not bound by legal technicalities, legal forms or rules of evidence; and
(b)is to act as speedily as a proper consideration of the review allows; and
(c)in determining what a proper consideration of the review requires, must have regard to the objective laid down by section 88.
(2)The SSAT may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate.
The objective of the SSAT in carrying out hearings under Part VIIA of the Act is set out in s.88, which says:
In carrying out its functions under this Act, the SSAT must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.
It has not been shown that the Tribunal failed to have regard to the requirements in s.103N(1) of the Act when conducting the hearing.
In my view, the Appellant has not demonstrated any error of law on the part of the Social Security Appeals Tribunal. It follows that the appeal must be dismissed.
The First Respondent was not legally represented in this Appeal. The Second Respondent, the Child Support Registrar, does not seek an order for costs:
…it is submitted that the appeal ought to be dismissed, without costs.[23]
[23] Outline of Submissions of the Second Respondent page 8 at [43]
Consequently, the Court will not make an order for costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 26 July 2012
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