Hallett and Hallett and Anor (SSAT Appeal)
[2015] FCCA 2462
•9 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALLETT & HALLETT & ANOR (SSAT APPEAL) | [2015] FCCA 2462 |
| Catchwords: CHILD SUPPORT – Appeal from decision of Social Security Appeals Tribunal (SSAT) – no error of law demonstrated – appeal dismissed summarily. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.12, 30A Child Support (Registration and Collection) Act 1988 (Cth), s.110B, 103X(3)(b) Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Spencer v Commonwealth of Australia [2010] HCA 28 LMDE & JMA (SSAT Appeal) [2007] FMCAfam 712 |
| Applicant: | MR HALLETT |
| First Respondent: | MS HALLETT |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 5175 of 2015 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 31 July 2015 |
| Date of Last Submission: | 31 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 9 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Toowong Legal |
The First Respondent appearing on her own behalf
| Solicitors for the Second Respondent: | Department of Human Services |
ORDERS
That the Further Amended Notice of Appeal (Child Support) filed 30 July 2015 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hallett & Hallett & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5175 of 2015
| MR HALLETT |
Applicant
And
| MS HALLETT |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Child Support Registrar to have the Further Amended Notice of Appeal (Child Support) filed 30 July 2015 summarily dismissed.
The Material before the SSAT and on Appeal
I have considered the following material
a)Application in a case filed 6 May 2015;
b)Affidavit of Ms D filed 6 May 2015;
c)Submissions of the Child Support Registrar filed 6 May 2015;
d)Further Amended Notice of Appeal (Child Support) filed 30 July 2015; and
e)Outline of submission filed on behalf of the Applicant on 30 July 2015.
Factual Background
The Child Support Registrar has adequately summarised the factual background in paragraphs 4 to 11 of her written submissions.
“4. The Applicant and the First Respondent are the parents of four children (the children), who are the subjects of the child support assessment.
5. On 22 June 2010 the Registrar decided to end the child support assessment from 10 November 2009 because from that date the Applicant ceased to be a resident of (country omitted) and became a resident of (country omitted).
6. On 27 September 2010 an Objections Officer reviewed and affirmed the decision.
7. On 24 April 2014, the First Respondent applied for review by the SSAT out of time. On 29 May 2014 the extension of time was granted and on 7 October 2014 the SSAT reviewed and affirmed the decision.
8. On 3 November 2014 the Applicant filed a Notice of Appeal (Child Support) seeking to appeal the SSAT decision.
9. On 9 December 2014 the appeal came before this Court for mention. The Registrar submitted the Applicant had failed to raise a question of law in his appeal. The Applicant was afforded the opportunity to file any amended appeal by 14 April 2015. The Applicant was put on notice that summary dismissal may be sought if no amended appeal was made or if in the view of the Registrar, any amended appeal had no reasonable prospect of success.
10. The Registrar was served with an unsealed copy of the Applicant’s amended Notice of Appeal (Child Support) dated 10 April 2015 which outlines eight grounds of appeal.
11. The Registrar submits that the Applicant has again failed to raise a question of law with any precision in his amended appeal. Further, even if the Court were to interpret a question of law from the grounds capable of satisfying section 110B of the Collection Act, the Registrar submits the appeal has no reasonable prospect of success and as such should be summarily dismissed.”
I note that the further amended notice of appeal filed on 30 July 2015 removed order 3 and grounds 1, 2 and 8 from the application. The Child Support Registrar did not object to the Applicant relying on that document for the purpose of the appeal.
Summary Dismissal
Section 17A of the Federal Circuit Court of Australia Act 1999 sets out the law with respect to the summary dismissal of a matter. The relevant section in the present case is s.17A(1). Section 17A(1) provides:
“(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
Section 17A(3) relevantly provides:
“(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.”
Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) provides:
“Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
The identical provision to s.17A is contained in s.31A of the Federal Court of Australia Act 1979 (Cth) and the High Court considered that section in Spencer v Commonwealth of Australia [2010] HCA 28 wherein French CJ and Gummow J stated at paragraph [ 22]:
“In the Federal Court and in the Court of Appeal of Queensland, the criterion of a ‘reasonable prospect’ of success has been understood in analogous statutory settings to mean a ‘real’ rather than ‘fanciful’ prospect[44]. This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable…”
Further Hayne, Crennan, Kiefel and Bell JJ went on to say at paragraph [56] to [60]:
“…s 31A(3) provides that certainty of failure (‘hopeless’ or ‘bound to fail’) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evidence that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes…
…The Federal Court may exercise power under s 31A if, and only if, satisfied that there is ‘no reasonable prospect’ of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to ‘no reasonable prospect’ can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase ‘just and equitable’ when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different procedural regimes.”
A Question of Law
The right to appeal is afforded to the Applicant as set out in s.110B of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) and is limited to an appeal “on a question of law”. In LMDE & JMA (SSAT Appeal) [2007] FMCAfam 712 at [21] Halligan FM (as he then was) recognised the connection between the Administrative Appeals Tribunal Act 1975 (Cth) s.44(1) and the s.110B of the Collection Act. Paragraph [18] through to [23] accurately summarises the description of an appeal on a question of law and I adopt those sections in my reasons.
“[18] This right of appeal on a question of law was created by the insertion of Division 3 into Part VIII of the Registration Act by Schedule 3 of the Child Support Legislation Amendment (Reform of the Child Support Scheme — New Formula and Other Measures) Act 2006 (the New Formula Act). As will subsequently appear, the legislative source of these and other relatively new provisions, and the application provisions in relation to certain amendments they effected, is of some significance in this case.
[19] The Explanatory Memorandum accompanying the Bill that became the New Formula Act says of s 110B:
Section 110B deals with appeals from decisions of the SSAT. It 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 SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.
[20] The provision creating a right of appeal, on a question of law, from the Administrative Appeals Tribunal (the AAT) is s 44(1), Administrative Appeals Tribunal Act 1975 (the AAT Act), which is in the following terms:
(1)
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
[21] Section 110B and s 44(1) are identical provisions apart from the references to the tribunals whose decisions may be appealed and the court to which the appeal lies. And other provisions of Division 3, Part VII of the Registration Act are based on provisions in relation to appeals, on a question of law, from the AAT, including provisions as to the court’s powers on an appeal (cf. s 110F, Registration Act and s 44(4) and (5), AAT Act) and the limited power to make findings of fact on an appeal (cf. s 110G, and s 44(7), (8) and (9)). Thus, in determining the meaning and operation of provisions of Division 3, decisions as to the meaning and operation of equivalent provisions of s 44 will provide valuable guidance.
Appeal
[22] The term “appeal” is potentially confusing. The proceedings are within the original jurisdiction of the court hearing them, as was observed by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, in relation to an appeal under s 44, AAT Act.
On a question of law
[23] The meaning of an “appeal, on a question of law” has been considered in many appeals under s 44 of the AAT Act, as has the need for an appellant in a section 44 appeal to articulate a question or questions that are in reality questions of law, and the connection between the question of law and the orders sought. While these decisions are relevant, care needs to be taken in applying some of those decisions to s 110B appeals to recognise relevant differences in the procedural requirements for s 44 and s 110B appeals.”
An appeal “on a question of law” is more limited in scope than an appeal which involves a question of law: see Hussain v Minister for Foreign Affairs [2008] 169 FCR 241 at paragraph [31].
Flick J noted in Australian Postal Corporation v Hughes [2009] FCA 1057 in respect of the analogous provision within the AAT Act at paragraph [7]
“The jurisdiction being exercised is…constrained by the requirement that the appeal be ‘on a question of law’” In Brown v Repatriation Commission (1985) 7 FCR 302 at 304 Bowen CJ, Fisher and Lockhart JJ observed in respect of this constraint:
The existence of a question of law is not merely a qualifying condition to grant an appeal from a decision of the Tribunal; rather it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.”
Thus, the existence of a question of law within the Applicant’s ground of appeal is critical to the exercise of the jurisdiction of the Court to hear an appeal from the SSAT. In Rana v Repatriation Commission [2011] FCAFC 124 at [11] the Court noted:
“The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.”
Grounds of Appeal
Ground Three
The Grounds of appeal are set out in Further Amended Notice of Appeal (Child Support) filed by the Applicant on 30 July 2015 referring firstly to Ground Three:
“3. The Social Security Appeal Tribunal (SSAT) erred in finding the Applicant ceased to be resident of (country omitted) and became a resident of (country omitted) on 11 November 2009 and the decision was not supported by the factual matrix.”
Counsel for the Applicant submitted a very brief outline that argued all of the grounds for appeal commencing at paragraph 2 of the Outline of Submission filed on 30 July 2015:
“2. As contended by the Applicant in his previous appeal notice:
8.1 The SSAT was asked in April 2014 by Ms Hallett (The Applicant in this case), to determine as to whether Mr Hallett (the Defendant in this case) had actually moved to (country omitted). Ms Hallett claimed that Mr Hallett had never actually moved to (country omitted).
8.2…
8.3 The Defendant (Mr Hallett in the SSAT case) presented substantial evidence, and arguments that he had moved to (country omitted), and the SSAT found that Mr Hallett had moved to (country omitted) with his family…
8.4 The SSAT upon ruling that Mr Hallett had moved to (country omitted), made a further ruling as to the exact residency date that Mr Hallett had moved to (country omitted).
…
3. The approach of the SSAT raised the appellant’s immigration status in (country omitted), absent any evidence of the nature and/or status of any particular immigration status under (country omitted) law, such that it became the determining fact in setting the date upon which the SSAT determined the appellant had taken up residence in (country omitted).
4. The task of the SSAT was to determine not when the appellant attained any particular residency status in (country omitted) but to determine whether he was a resident of (country omitted) on a particular date.
5. All of the evidence supported the appellant’s position that he had ceased residence in (country omitted) and taken upon residence in (country omitted). None of these facts were challenged.
6. Clearly the SSAT misdirected itself as to a requirement of law.”
The solicitor for the Child Support Registrar argued that ground three goes to the factual matrix. Counsel for the Applicant argued the ground alleges that the Applicant ceased to be a resident of (country omitted) and became a resident of (country omitted) on 11 November 2009 and that the decision was not supported by the factual matrix. In the Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at paragraph 54:
“The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:
·The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
·The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
·A wrong finding of fact is not an error of law (Al-Miahi).
·A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi).
…”
The Child Support Registrar’s solicitor submitted that the issue raised by Counsel for the Applicant was that the Tribunal asked itself the wrong question in relation to s.12 of the Child Support (Assessment) Act 1989 (“the Assessment Act”) had two elements. Firstly he submitted that nowhere in the Notice of Appeal do the grounds refer to the Social Security Appeal Tribunal (“SSAT”) asking itself the wrong question and secondly, the reasons of the decision maker show he/she asked the correct question:
“Under section 12 of the Assessment Act a terminating event happens and an assessments ends if a liable parent:
·ceases to be a resident of Australia (subsection 3) or
·ceases to be a resident of reciprocating jurisdiction and does not become resident of another reciprocating jurisdiction. or of Australia (subsection 3A) or
·becomes resident of a reciprocating jurisdiction which is specified in the regulations made for the purpose of section 30A of the Assessment Act (subsection 3B).”
The Solicitor for the Registrar argued that it is in fact the ss.3B that is the relevant provision in relation to this case because (country omitted) and (country omitted) are both reciprocating jurisdictions therefore the liable parent becomes resident of a reciprocating jurisdiction which is specified in the regulations made for the purposes of s.30A of the Assessment Act. It was further submitted that the correct question was asked and that it is question of fact. I accept that submission so that ground has no reasonable prospect of success and should therefore be dismissed.
Ground Four
Ground Four is as follows:
“4. The SSAT erred in failing to correctly apply the correct definition of ‘resident’ by reference to the Macquarie and Shorter Oxford English dictionaries, in that it applied a narrow definition:
‘The Oxford definition of resident is a person who lives somewhere permanently or on a long term basis.’
The correct definition being
‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to love in or at a particular place’.”
The Solicitor for the Child Support Registrar conceded that the question as to whether a statutory term or phrase is to be given its ordinary meaning or some technical or other meaning is a question of law. The question of what is the ordinary meaning of a statutory term or phrase is a question of fact. Collector ofCustoms v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322 at paragraph [23]. The Solicitor for the Child Support Registrar submitted that the word “resident” within the term “resident of a reciprocating jurisdiction” is to be given its ordinary meaning and the question of whether the Applicant was a resident of a reciprocating jurisdiction is one of fact (see Carrigan & Fredricks (SSAT Appeal) [2011] FMCAfam 544 at paragraph [118] and paragraph [136]). I therefore accept this ground has no reasonable prospect of success and should therefore be dismissed.
Ground Five
Ground five is as follows:
“5. That the SSAT erred in failing to give adequate and sufficient reasons:
(a) In applying the definition of ‘resident’ by reference to the Macquarie and Shorter Oxford English Dictionaries;
(b) In not considering:
i. The Applicant’s intention or purpose of his presence in (country omitted) and (country omitted);’
(ii) The Applicant family and business/employment ties to (country omitted);
(iii) The location of the Applicant’s assets and arrangements he made to maintain them;
(iv.) The Applicant social and living arrangements in (country omitted);
(v.) The period of time that Applicant spent in (country omitted) and (country omitted) at the relevant times;
(vi.) The Applicant permanent place of abode; and
(vii.) The 183 day test.”
The Applicant’s fifth ground asserts a failure of the SSAT to provide adequate or sufficient reasons. The requirement for the SSAT to provide reasons is set out in s.103X(3)(b) of the Collection Act which provides:
“3 The SSAT must, within 14 days after making the decision, either:
… or
(b) give to each party a written notice (whether or not as part of the notice under paragraph (1)(a)) that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings on any material questions of fact; and
(iii) refers to evidence or other material on which the findings of fact are based.”
In the Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at [77] the Full Court stated:
“We have thus found Grounds 2, 4 and 5 of this appeal to have merit and therefore support the Registrar’s overall complaint that his Honour has erroneously interpreted s 103X(3)(b) as permitting a review of the adequacy of the SSAT’s reasons. By analogy with what was said by members of the High Court in Yusuf, and having regard to the principles in Bond, Al-Miahi, and Wu, such a review as to adequacy of reasons is not permissible.”
This ground has no reasonable prospects of success and I will therefore dismiss it.
Ground Six and Seven
Ground six and seven are as follows:
“6. That the SSAT erred in giving to much weight to:
a. The Applicant being granted a work permit in (country omitted) as pivotal to his change of residency;
b. The Applicant communications with the Child Support Agency;
c. The Applicant residency status in (country omitted) for tax purposes;
7. That the SSAT erred in the not giving adequate and sufficient weight to:
a. The Applicant actually living in (country omitted) at the relevant times;
b. The Applicant children attending school in (country omitted) at the relevant times;
c. The Applicant having bank accounts in (country omitted) at the relevant times;
d. The Applicant leasing motor vehicles in (country omitted) at the relevant times;
e. The Applicant not having permanent residential accommodation or a motor vehicle in (country omitted) at the relevant times; and
f. The Applicant was only a fly in, fly out working in (country omitted) at the relevant times.”
The solicitor for the Child Support Registrar submits that these two grounds fall into the category of merits review and don’t raise a question of law but simply raise questions of fact.
The Child Support Registrar submitted that whether the SSAT failed to give proper consideration to the evidence before it, or attached undue or excessive weight to particular pieces of evidence or whether the evidence was capable of supporting its conclusions are not questions of law but rather questions of fact. The Child Support Registrar cited a number of authorities in foot note 14 (Harnett v Migration Agents Registration Authority [2004] FCA 50 at [50] per Marshall J; Australian Securities Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649 at [46] per Branson J (with whom Jacobson and Bennett JJ concurred); Hill v Repatriation Commission (2005) 85 ALD 1 at [92]-[93] per Wilcox, French and Weinberg JJ )for that proposition and I accept the Registrars submission that grounds 6 and 7 have no reasonable prospects of success and should therefore be dismissed.
Conclusion
Each of the grounds of appeal relied on by the Applicant do not disclose a question of law, have no reasonable prospects of success and should therefore be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 9 September 2015
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