Greene and Badgery and Anor (SSAT Appeal)

[2015] FCCA 2313

FEDERAL CIRCUIT COURT OF AUSTRALIA

GREENE & BADGERY & ANOR (SSAT APPEAL) [2015] FCCA 2313

Catchwords:
CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal – whether SSAT erred in law because it had no jurisdiction – whether the SSAT failed to accord the Applicant procedural fairness – error of law established – matter remitted to SSAT for redetermination.

Legislation:

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 – Schedule 3
Child Support (Registration and Collection) Act 1988, ss.87, 89, 103N, 110B, 110F

Kioa v West (1985) 159 CLR 550
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829

Applicant: MS GREENE

First Respondent: MS BADGERY

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 1499 of 2014

Judgment of: Judge Sexton

Hearing date: 4 June 2015

Date of Last Submission: 4 June 2015

Delivered at: Sydney

Delivered on: 26 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Jefferis

Solicitors for the Applicant: Gells Lawyers

Counsel for the First Respondent: In person

Solicitors for the Second Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the Social Security Appeals Tribunal dated 14 February 2014 be set aside.

3. The proceedings be remitted to the Social Security Appeals Tribunal to be determined according to law.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1499 of 2014

MS GREENE

Applicant

And

MS BADGERY

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal by Ms Greene, the Mother of the parties’ three children, [X] (aged 27 years), [Y] (aged 15 years) and [Z] (aged 10 years) from a decision of the Social Security Appeals Tribunal (SSAT), dated 14 February 2014.  The Tribunal set aside the decision under review, and determined that the Mother's application for a child support assessment, dated 24 November 2006, would be refused. 

2. The appeal requires the determination of two questions:

   a)Firstly, did the SSAT have jurisdiction to make its determination of 14 February 2014 given the original decision was made in December 2006, before the commencement of the amendment made by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 on 1 January 2007 ?  and/or

   b)Secondly, was the Mother afforded procedural fairness in the SSAT proceedings?

Background facts

1. The parties were married in 1994. There are three children of the relationship.

2. The parties dispute the date of separation. The Mother says that the parties lived separately under the same roof from 2005. The Father says that the parties did not separate until they commenced living in separate residences in April 2013.

3. On 12 October 2006, the parties entered into a Binding Financial Agreement in relation to property issues.[1] The recitals to the agreement stated that the parties “separated on 28 April 2005 and have lived in separate rooms and apart since that date and there is no reasonable likelihood of cohabitation being resumed.” The agreement was signed by both parties, and the relevant certificates were annexed.

   [1] Exhibit 1

4. On 24 November 2006, the Mother applied to the Child Support Agency (CSA) for a child support assessment. The CSA accepted the application on 13 December 2006, determined that the Mother had 100% care of the Children and that the Father was liable to pay child support (the original decision). 

5. Although the Mother opted not to have the CSA collect child support initially,  from September 2010 until May 2011, and from 4 October 2012, the CSA collected child support from the Father.

6. On 6 August 2013, the Father lodged an objection to the original decision, nearly seven years out of time.  

7. On 14 August 2013, the Father was granted an extension of time to lodge his objection. The basis for his objection was that the parties were living as a married couple in November 2006 and did not separate until 16 April 2013.  

8. On 3 October 2013, a CSA objections officer disallowed the Father’s objection (“the objection decision”). The objections officer found that “on the date [the Mother] applied for the child support assessment, the parents were not in a relationship.” [2]As a result, the original decision to accept the Mother’s application for child support remained on foot.

   [2] At page 7 of Objection Decision dated 3 October 2013 – Tribunal Documents

9. On 15 October 2013, the Father applied to the SSAT for a review of the objection decision of 3 October 2013.

10. The Mother was advised by letter dated 18 October 2013 that the Father had lodged an appeal to the SSAT.  On 17 November 2013, the Mother called the Tribunal and spoke to a SSAT officer who identified as “[Mr L]”. She was advised that the hearing date had not yet been allocated, and the Mother asked the officer "[Mr L]" to make “a note on the SSAT system that [she] would not be available to attend hearing during the month of January 2014 or February 2014….as it was peak leave period and no unscheduled leave was allowed.”[3] The Mother says that she gave her available dates in March 2014. She gave reasons for seeking an extension of time including that she needed time to gather information more than 7 years old, that she was a sole parent of 3 children, the sole income provider for herself and the children and no unscheduled leave would be provided by her employer in January or February 2014.  She said she needed an extension of time to seek legal advice. The outcome would determine whether or not she was owed almost $25,000 by the Father in child support arrears, which was money she and the children needed. 

    [3] At paragraph 9 of Mother’s affidavit sworn on 14 March 2014

11. On 25 November 2013, the Mother received the CSA documents. 

12. On 17 December 2013, the SSAT wrote to the Mother advising her that the hearing was scheduled for 24 January 2014. The Mother says that she received this letter on 21 December 2013.

13. On 14 January 2014, the SSAT sent a letter to the Mother asking for her documentary evidence. The Mother says that the did not receive that letter until 18 January 2014.

14. On 17 January 2014, the Mother again spoke to “[Mr L]” at the SSAT and requested that the hearing on 24 January 2014 be rescheduled to her available dates in March 2014. She gave available dates in every week of March 2014. The Mother says that “[Mr L] kept repeating I would need to speak to [Mr T] who was unavailable and…only [Mr T] knows the details of the case.”[4] The Mother requested that “[Mr T]” call her back, and when she spoke with him on that same day, advised that “she would not be able to attend the hearing due to work commitments.”[5]  She also told "[Mr T]" that there was an existing AVO in force for her protection against the Father and she was concerned about her safety as the Father had been in gaol earlier in the year in relation to charges of assault and breach of the Apprehended Violence Order.

    [4] At paragraph 13 of Mother’s affidavit sworn on 14 March 2014

    [5] Ibid at paragraph 15

15. On 21 January 2014, the Mother put in writing her request to have the SSAT hearing rescheduled.

16. On 23 January 2014, a delegate of the Principal Member refused the Mother’s request and determined that the Mother had enough notice of the hearing, and her reasons for seeking an adjournment did not outweigh the cost and inconvenience of the proceedings being adjourned.

17. At the hearing on 24 January 2014, the Mother again sought an adjournment so that she could seek legal advice and “put her papers together.”  In its reasons for decision, the Tribunal said that because the Mother[6]:

    …had more than three months’ notice of the date of the application and more than a month’s notice of the date of the hearing and as it is not normally necessary to obtain legal advice in relation to an administrative review, and in recognition of the inconvenience to the other parties, the Tribunal decided to not adjourn the hearing, without at least considering whether the parties’ initial evidence would demonstrate a need for legal advice….

    [6] At paragraph 7 of SSAT Reasons dated 14 February 2014

18. The parties gave oral evidence on 24 January 2014, and according to the Tribunal both regularly referred to documents not in evidence. On 30 January 2014, the Mother says the Tribunal sent a letter to the Father advising that he could submit further evidence. The Mother deposes to not receiving that letter. However, it seems the Mother was aware of her opportunity to provide further evidence because she deposes to the Tribunal member telling her they would not be reviewing the case until a few weeks after the evidence closing date of 14 February 2014.   

19. By the time the Tribunal decided the case on 14 February 2014, the Mother had provided no further documentary evidence, and the Tribunal found the material provided by the Father irrelevant. The Mother says she submitted 13 emails containing relevant evidence of the parties' separation in 2006, including notice of separate utility bills, the Father having a different address, and a letter from John Orford, solicitor, dated 11 February 2014, who witnessed the Binding Financial Agreement signed in October 2006 and confirmed that the Recitals included the parties' date of separation as April 2005. However, as was conceded by the Mother's counsel in the proceedings before me, the documents were sent to the Tribunal during the evening of 14 February 2014 from 6.30p.m., well after business hours. 

The Social Security Appeals Tribunal decision

1. On 14 February 2014, the Tribunal determined to set aside the decision under review and, “in substitution, decides that [the Mother’s] application for assessment, made on 24 November 2006, should be refused.”

2. The decision under review was the decision of the Objections Officer dated 3 October 2013.[7]

   [7] At paragraph 4 of Tribunal’s Reasons dated 14 February 2014

The Reasons of the Tribunal

1. The Tribunal identified the issue for determination as whether or not the Mother’s application of 24 November 2006 for a child support assessment should be accepted. The Tribunal said that this required a determination of "whether [the Mother] was living as a partner of [the Father] at the time.”[8]

   [8] Ibid at paragraph 11

2. The Tribunal set out the law that applied on 13 December 2006 when the original decision was made by the Registrar, and in particular, section 25 of the Child Support (Assessment) Act 1989 at that time, which identified persons who may apply for an administrative assessment of child support. The Tribunal accepted that the Mother was an “eligible carer” as required by s.25(2)(a) and that the Father was a parent of the Children and a resident of Australia as required by s.25(2)(b). The Tribunal then said it must determine whether s.25(2)(c) of the Act was satisfied, namely “whether or not the [Mother] was living as the partner of [the Father] on a genuine domestic basis at the time of the decision of the CSA to accept [the Mohter’s] application.”[9] The Tribunal noted that “genuine domestic relationship” is not defined in the Act, but referred to reference 2.1.1 of the Guide to Child Support Law which sets out factors to be considered in establishing whether people are living together as partners on a genuine domestic basis.

   [9] Ibid at paragraph 16

3. The Mother said during the hearing that the parties had separated in late 2006. She had wanted the Father to leave the home, but that he refused, that she had moved into a separate bedroom, and “from that point they lived separated lives.”[10] The Mother said that the parties had attempted to reconcile “years later”, but that as at the time of her child support application in 2006, “they were living separately under the one roof.”  The Mother told the Tribunal that in late 2005 or 2006 she had opened her own bank account, changed the household utilities into her name alone and contacted Centrelink about the family tax benefit. She alone cared for the children, attended their school events and undertook the domestic tasks. She did not cook meals for the Father and they did not socialise together. They had not had a sexual relationship since April 2005. She said the parties had entered into a "property settlement" sometime in 2006.[11]

   [10] Ibid at paragraph 21

   [11] Ibid at paragraph 25

4. At the hearing, the Father said that he and the Mother had been a “normal married couple” until April 2013.[12] He denied the Mother’s assertions. He said that there had been two periods of short separation in 2010 and 2012, but that reconciliation had occurred shortly thereafter. The Father said that in 2006/2007 his business had been in difficulty, which had produced stress, but there had never been any suggestion that he and the Mother would separate. The Father said that he never received advice from the CSA after the Mother applied for the assessment in 2006, and denied receiving messages left by the CSA in 2006.[13]

   [12] Ibid at paragraph 18

   [13] See file notes included in the Tribunal documents at pages 109 to 112 and 118 to 120

5. The Tribunal found the evidence of each party directly contradictory and both parties’ unsatisfactory witnesses, raising serious questions as to their credit.  The Tribunal said in the absence of a formal separation, divorce proceedings or property division, "”the strong implication is that they remain in a genuine domestic relationship." [14] The Tribunal said[15]:

   If there was documentary evidence to support [the Mother's] assertions it would very strongly suggest that the parties had separated, however the hearing papers do not provide sufficient documentation to support any of those assertions.

   [14] At paragraph 35 of Tribunal’s Reasons dated 14 February 2014

   [15] Ibid at paragraph 36

6. The Tribunal said that despite undertakings to provide documentary evidence and "ample opportunity" , the Mother failed to provide documents to support her assertions, even those she said were in her possession.  The Father provided no relevant documents either. 

7. The Tribunal made a specific finding, on the basis of the evidence before it, that on 13 December 2006 (the date of the original decision), the parties had “not commenced property division proceedings." [16] The Tribunal then referred to the finding of the Objections Officer that the Father had never said the parties remained in a genuine domestic relationship in his multiple discussions with the CSA, and found it to be in error.

   [16] Ibid at paragraph 40

The SSAT Appeal

1. Section 110B of the Child Support (Registration and Collection) Act 1988 provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction on a question of law from any decision of the Tribunal in that proceeding.  This is not a review on the merits.

Grounds of appeal

1. On 14 March 2014, the Mother filed a Notice of Appeal against the decision of the SSAT. This was amended by Notice of Appeal filed on 9 September 2014, when the Mother sought orders that the SSAT decision be set aside and the child support arrears enforced. At hearing, the Mother’s counsel sought an Order that the matter be remitted to the SSAT to be determined according to law.

2. The Mother relies on 4 grounds of appeal set out in the amended Notice of Appeal:

   1.  The SSAT erred in law because it had no jurisdiction to make the determination that it made.

   2.  The SSAT erred in law by failing to accord the Applicant procedural fairness by refusing to accept evidentiary material;

   3.  Alternatively, the SSAT erred in law by failing to accord the Applicant procedural fairness by refusing to extend the time for the Applicant to submit further evidentiary material;

   4.  The SSAT’s findings were irrational or arbitrary…or amounted to a refusal to hear the matter.

Did the SSAT have jurisdiction to make its determination?

1. The Mother argues that the SSAT did not have jurisdiction to review her application for assessment made on 24 November 2006 because her application was originally determined on 13 December 2006. Counsel for the Mother submits that as Schedule 3 of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (“the Amending Act”) commenced on 1 January 2007, the SSAT had no jurisdiction to set aside the original decision which was made before 1 January 2007.  

2. Counsel relies on the following:

   a)The heading in Schedule 3 of the Amending Act which reads, “SSAT review of child support decisions (commencing on 1 January 2007” establishes a reference point for when the SSAT review of child support decisions commenced.

   b)Items in the Amending Act, which relate to sections of the Assessment Act, and provide notice that subject to the Registration and Collection Act, persons can object to original decisions and, if aggrieved by “a later decision on any original decision” may apply to the SSAT for review of the later decision.

3. Counsel for the Mother says that the Amending Act contains “no reference at all to appeals or objections that started before 1 January 2007, being able to be dealt with by the SSAT….” [17]

   [17] At page 14 of 4 June 2015 transcript of proceedings

4. I found it difficult to follow the Mother's counsel’s argument on this issue and how these items might have assisted the Mother’s case. From written submissions it seems that the Mother contends that the "substantive" decision the Tribunal was reviewing was the decision made in 2006, rather than deciding whether the objection decision made in October 2013 was valid. This may be because the Tribunal member, Mr K, expressed the question to be determined as follows:[18]

   In this case, the Tribunal has to decide whether to accept Ms Greene's application of 24 November 2006 for an administrative assessment of child support.  To do this the Tribunal must determine whether Ms Greene was living as the partner of Mr Badgery at the time.

   [18] At paragraph 11 of Tribunal’s Reasons dated 14 February 2006

5. In other words, it seems the Mother’s counsel contends that the Tribunal was, in substance, reviewing the decision of December 2006, as opposed to the objection decision of October 2013.  Therefore any remaking of the objection decision is in substance a decision to remake the determination of whether to accept the mother's assessment application. It is argued that the objection is appellate in nature, it is not the statutory decision.

6. At paragraph 17 of the Mother's written submissions, counsel states "it may well be that the Tribunal had jurisdiction to review the decision to disallow the father's objection.  However, the substantive issue is whether the Application made in 2006 was validly accepted by the CSA, as it then was, not whether the objection decision was valid."   Counsel argues that the decision made by the Tribunal to substitute the Agency's decision in relation to the 2006 application was therefore made "without power". 

7. Mr Dennis, solicitor for the Registrar, submitted that the Tribunal’s jurisdiction arose from the objection decision made on 3 October 2013. Mr Dennis referred the Court to section 89 of the Child Support (Registration and Collection) Act 1988 which sets out the basis for the jurisdiction for applications to the SSAT for review. S.89 provides that:

   A person may apply to the SSAT for review of a decision of the Registrar if:

(a)  the decision is set out in an item of the following table; and
 (b)  the person is set out in that item. 

Decisions/applicants
Item	Decision	Who may apply for review
1	a decision under subsection 83(1) on an application for an extension of time	the person who applied for the extension of time
2	a decision under subsection 87(1) on an objection to a decision (the original decision ) of the Registrar	(a) the person who objected to the original decision under section 80or 80A; or (b) a person who was entitled to be served a copy of the objection and any accompanying documents under section 85

1. Section 87(1) of the Registration and Collection Act provides that:

   If an objection is lodged under this Part, the Registrar must:

   (a)  consider the objection and:

(i)  if paragraph 86A(1)(b) applies in relation to the objection--any grounds relied on to oppose or support the objection;

or

(ii)  otherwise--any notice lodged with the Registrar under section 86 or paragraph 86A(1)(a) in relation to the objection; and

(b)    within 60 days after the objection is lodged, either:

(i)  disallow the objection; or

(ii)  allow it in whole or in part.

1. Mr Dennis submits that the objection decision made in October 2013 was a decision made under section 87(1) and therefore enlivened the jurisdiction of the SSAT. He submits that the date of the original decision in 2006 was irrelevant to the question of jurisdiction. He further submits that as the Tribunal conducts a “de novo” review, it is always open to the Tribunal to consider evidence and matters that were relevant to the original decision.

2. Neither party's legal representative provided the Court with any authority on this issue. However, His Honour Judge Halligan, in the decision of LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 addressed the issue. The Mother in that case had argued that the SSAT lacked jurisdiction to hear and determine the Mother’s child support assessment application because it was made and determined before 1 January 2007. The Mother in that case, lodged her objection before 1 January 2007, but the objection was not determined by the Registrar until after 1 January 2007. After closely considering the amendments effected by the New Formula Act, His Honour said[19]:

   Schedule 3 of the New Formula Act commenced on 1 January 2007.  It follows from these provisions that:

(a)…

(b)The decision by the Registrar on the mother's objection, made after 1 January 2007, was therefore a decision under s.87(1) of the Registration Act;

(c)Under Item 77(2), the SSAT review provisions apply to the decision.

[19] At paragraph 70

1. Item 77(2) of the Amending Act provides that:

   Part VIIA (SSAT Review) of the Registration and Collection Act….applies in relation to a decision made by the Registrar under subsection 83(1) or 87(1)of the Registration and Collection Act after the commencement of this item.

2. I agree with Judge Halligan's decision of LDME & JMA (SSAT Appeal) [2007] FMCAfam 712 and with the submissions of Mr Dennis for the Child Support Registrar. The objection decision was made after 1 January 2007 and was therefore a decision under s.87 of the Registration Act. Under Item 77(2) of the Amending Act, the SSAT review provisions apply to the objection decision. The Tribunal conducts a de novo review and it is therefore necessary for the Tribunal to consider evidence relevant to the original decision.  I find that the issue identified by the Tribunal for its consideration may have caused confusion.  The Tribunal was required to decide whether the objection decision was valid and for the purpose of that determination, had to decide whether the original decision of the Registrar to accept the Mother’s application for a child support assessment was correctly made.  I am satisfied that the Tribunal understood the decision under review was the objection decision made in October 2013, not the original decision made in December 2006.

3. As I find that the SSAT did have jurisdiction to hear the Father’s application, the first ground of appeal fails.

Did the SSAT fail to accord the Mother procedural fairness by failing to accept evidentiary material or by refusing to extend the time for the Applicant to submit further evidentiary material ? 

1. As already noted, the issue before the SSAT was whether the parties were living in a genuine domestic relationship at the time the Mother's application for a child support assessment was lodged and decided in November/December 2006.

2. The Mother tells this Court that she wished to rely on the Binding Financial Agreement pursuant to s.90C of the Family Law Act 1975 entered into between the parties in October 2006, to support her contention that the parties were separated at the relevant time. In the period of the adjournment between 24 January 2014 and 14 February 2014, the Mother did not produce the document to the Tribunal. Therefore the Tribunal did not have the opportunity to consider the document before making its determination on 14 February 2014, although the Mother had told the Tribunal at the hearing in January that the parties had a "property settlement" in 2006.  The recitals to the Binding Financial Agreement state that the parties separated in April 2005, evidence the Tribunal itself says may have affected the outcome of the hearing. The Mother complains that the Tribunal Member refused to accept a letter from her solicitor dated 11 February 2014 which referred to an electronic copy of the Binding Financial Agreement, and attested to its contents. I am not satisfied her evidence on this issue is accurate. As already noted, the letter from her solicitor to which she refers was not provided to the Tribunal until the evening of 14 February 2014 (when she also sent other documents), after the Tribunal had already made its decision.

3. Mr Dennis for the Child Support Registrar submits that "procedural fairness must be observed by reference to the particular statutory framework." [20] He submits that the Registration and Collection Act sets out the procedure to be followed by the Tribunal and provides that "the Tribunal is to act as speedily as a proper consideration of the review allows."[21] S.103N(2) provides that the Tribunal may inform itself on any matter relevant to a review of a decision in any manner it considers appropriate. Mr Dennis submits that "procedural fairness relevantly required that the applicant be given a meaningful opportunity to put information and submissions to the Tribunal in support of her case."  [22] He submits that the Tribunal discharged its obligations in that the Mother was not restricted in any way from properly presenting her case. 

   [20] At paragraph 19 of Second Respondent’s written submissions

   [21] Section 103N(1)(b) - Child Support (Registration and Collection) Act 1988

   [22] At paragraph 20 of Second Respondent’s written submissions

4. The original decision was made by the Child Support Registrar in December 2006. Nearly 7 years later, the Father lodged an objection which was disallowed, after an extension of time had been granted. The Father then lodged an appeal to the SSAT. The Mother was notified just before Christmas 2013 that a hearing date would be allocated, though was not given the hearing date at that time. The Mother specifically requested that the hearing not be allocated in January or February 2014 because of her work commitments, and difficulty in taking leave at those times. The Tribunal nevertheless allocated a hearing date on 24 January 2014 for reasons unexplained. The Mother made three further requests for the hearing to be adjourned to give her time to collate the relevant documents, a verbal request a week before the hearing, a written request 3 days before the hearing and another request on the day of hearing.  All requests were refused.  The Mother says she had been unable to locate the Binding Financial Agreement and sought additional time at the hearing on 24 January 2014.  While the Tribunal does not refer to any such specific request in its reasons for decision, the Mother did advise the Tribunal she had relevant documents and the Tribunal did allow the parties a further period to 12 February 2014 to lodge any further documents by 12 February 2014, given the contradictory nature of the parties’ oral evidence.  The Mother failed to meet that deadline, but did provide documents after hours on 14 February 2014. The letter from the solicitor which confirmed that a Financial Agreement had been entered into between the parties in October 2006 was included in those documents. 

5. I agree with Mr Dennis that the Tribunal had a discretion as to whether or not to proceed in the absence of documents to support either party's case. The question here is whether that discretion was properly exercised in this case, which requires consideration of what the requirement of procedural fairness entails.

6. This issue was addressed comprehensively by his Honour Judge Riethmuller in PJ & Child Support Registrar (SSAT Appeal)[23]. His Honour points out that the authorities highlight the need to consider the circumstances of each individual case, and I quote from His Honour’s reference to remarks of Mason J in Kioa v West[24], where His Honour there said:

   In this respect, the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.

   [23] [2007] FMCAfam 829

   [24] (1985) 159 CLR 550

7. I agree with Judge Riethmuller’s analysis of the authorities when he says, at paragraph 27 of his judgment, that:

   The rules of natural justice may vary from case to case, even though the same power is being exercised, depending on the nature of the issues, and events in a particular hearing.[25]

   [25] See National Companies and Securities Commission v News Corporation Limited[1984] HCA 29; (1984) 156 CLR 296 per Gibbs CJ at [19].

8. I have considered the circumstances of this particular case. I am not satisfied the Mother was afforded procedural fairness.   

9. At all relevant times, the Mother was a single working mother with the care of the parties' children.  The original decision was made nearly 7 years before the objection was lodged by the Father.  Notice of the Father’s application to the SSAT was advised to the Mother late in 2013. As soon as the Mother was told that a hearing date was to be allocated, she advised of her unavailability in January and February 2014 and asked for the matter not to be heard before March 2014. She gave the Tribunal officer a range of suitable dates.  While the Tribunal may not have been aware of her request, it was certainly aware of her request to adjourn a week before the allocated hearing date.  The Mother understandably needed time to gather together the relevant documents, given the time that had elapsed since the original decision.  While she was given some time, she was not given much time, particularly as she was a single working mother of three children, receiving limited child support from the Father and no respite from him for the care of the children.  The Mother did manage to obtain a letter from her solicitor about the "property settlement" she had referred to at the hearing (the Binding Financial Agreement) during the adjourned period, before the decision was made on 14 February 2014, but provided the document to the Tribunal some hours after the Tribunal had made its decision. It is clear from the contents of the letter from her solicitor dated February 2014, and from the Binding Financial Agreement itself,[26] that the evidence of that Agreement may have been critical to the Mother's case, and as acknowledged by the Tribunal itself, may have affected the outcome, given the matters to which the Tribunal had particular regard in reaching its decision.   

   [26] Exhibit 1

10. I am satisfied that the Mother’s circumstances warranted special consideration. It is clear from the Tribunal’s reasons for decision that the Tribunal would have had careful regard to any documentary evidence in support of either party's assertions, given the parties’ evidence was contradictory. While it is not clear from the Tribunal's reasons whether the Tribunal was aware the Mother needed more time to locate the Binding Financial Agreement specifically, it is certainly clear that the Mother had notified the Tribunal of her inability to deal with a hearing (including collating relevant documents) in the months of January and February 2014, and had documentary evidence she wanted the opportunity to provide.  

11. It is not necessary for this Court to reach a decision as to whether or not it is likely the Tribunal would have made a different determination, had the Mother had an opportunity to adduce evidence of the Binding Financial Agreement. It is enough that I am satisfied the Mother should have been given that opportunity in the particular circumstances of this case. 

12. It follows that the appeal must be allowed on the ground that the Mother was not afforded procedural fairness in that the Tribunal did not allow her more time to adduce documentary evidence, and denied her the opportunity to have evidence of the Binding Financial Agreement considered at the Tribunal hearing. As I have determined to uphold the appeal on the basis of Ground 3 of the Notice of Appeal, the appeal will be allowed. 

13. Section 110F of the Child Support (Registration and Collection) Act 1988 sets out the powers of the court when determining an appeal from the Tribunal. It provides the court may make such order as it thinks appropriate by reason of its decision. 

14. I have decided the decision of the SSAT will be set aside, and the matter remitted to the Tribunal for re-hearing.  

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Associate: 

Date:     26 August 2015