Haynes and Child Support Registrar and Anor (SSAT Appeal)
[2016] FCCA 2056
•25 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYNES & CHILD SUPPORT REGISTRAR & ANOR (SSAT APPEAL) | [2016] FCCA 2056 |
| Catchwords: EVIDENCE – Affidavits containing fresh material – material not before the SSAT inadmissible on review. COSTS – Application for costs – where Appellant seeks an order for costs – Appellant not legally represented. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.152G Child Support (Registration and Collection) Act 1988 (Cth), ss.3A, 25, 103S, 110B, 110F Family Law Act 1975 (Cth), s.4 |
| Cases cited: LDME & JMA (SSAT Appeal) (2007) FLR 214; [2007] FMCAfam 712 Schmidt & Geller (SSAT Appeal) [2012] FMCAfam 735 |
| Appellant: | MR HAYNES |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | MS HAYNES |
| File Number: | SYC 70 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 12 November 2013 |
| Date of Last Submission: | 12 November 2013 |
| Delivered at: | Sydney |
| Orders pronounced: | 24 June 2015 |
| Delivered on: | 25 July 2016 |
REPRESENTATION
| Appellant: | In person |
| Counsel for the First Respondent: | Mr Kaplan |
| Solicitors for the First Respondent: | Department of Human Services |
| Second Respondent: | No appearance |
ORDERS
The Amended Notice of Appeal filed on 1 October 2013 is dismissed.
The decision of the Social Security Appeals Tribunal made on 15 March 2013 and posted on 27 March 2013 is affirmed.
Written submissions in support of any application for costs and any affidavits setting out the way in which the costs sought are quantified are to be filed and served within 28 days from the date of these Orders.
Any written submissions in opposition to any application for costs are to be filed and served within a further period of 14 days.
IT IS NOTED that publication of this judgment under the pseudonym is Haynes & Child Support Registrar & Anor (SSAT Appeal) approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 70 of 2012
| MR HAYNES |
Appellant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| MS HAYNES |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal made on 15th March 2013 and posted on 27th March 2013. The Tribunal affirmed the decision of the Child Support Registrar that was under review.
Amended Notice of Appeal
The Appellant proceeded by way of an Amended Notice of Appeal filed on 1st October 2013.
In his Amended Notice of Appeal the Appellant seeks the following Orders:
1. That the decision of the Social Security Appeals Tribunal dated 15 March 2013 and despatched on 27 March 2013 be set aside.
2. That the Child Support Agency (“CSA”) forthwith discharge all arrears for interim spousal support and/or child support.
3. (deleted)
4. (deleted)
5. That the CSA refund all incorrectly collected payments of interim spousal maintenance.
6. That the Respondent pay the Applicant’s costs for bringing this matter to Court for adjudication.
Grounds of Appeal
The Appellant relied on four grounds of appeal:
4. That the CSA erred in law by registering the unvaried Order of the (Court omitted) which was not the primary and final order pursuant to Section 4 of the Family Law Act 1975 and Regulation 38(2) of Family Law Regulations 1984.
5. That the CSA erred in law by registering the unvaried Order of the (Court omitted) which was not an overseas maintenance agreement pursuant to Section 4 of the Family Law Act 1975.
6. That the CSA erred in law by enforcing the unvaried Order of the (Court omitted) which ceased to have effect following the CSA/s completion of an administrative assessment for child support pursuant to Section 152G of the Child Support (Assessment) Act 1989.
7. That the SSAT erred in law by failing to consider and apply Section 4 of the Family Law Act 1975, Regulation 38(2) of the Family Law Regulations and Section 152(2) of the Child Support (Assessment) Act 1989 in its review and decision making process.
Background
The review by the Tribunal concerned the question of whether the Child Support Registrar should have registered for collection in Australia an overseas spousal maintenance order made by the (omitted court) USA, in addition to a separate child support assessment.
The Appellant objected to the decision on the basis that the decision effectively meant that he was being required to pay twice for child support, but on 28th November 2012 an objections officer disallowed the objection.
The Appellant then sought a review of that decision by the Social Security Appeals Tribunal. The parties attended a hearing of the Tribunal on 15th March 2013.
On 15th March 2013 the Tribunal affirmed the decision, meaning that the Appellant’s application for review was unsuccessful.
The Appellant then appealed to this Court.
Evidence and Submissions
The Appellant relied on the following documents:
a)his affidavit affirmed 29th September 2013;
b)an Outline of Case Document filed on 1st October 2013;
c)a document filed in Court on the day of the hearing paradoxically entitled Oral Arguments”; and
d)A further submission filed on 9th January 2015.
The Child Support Registrar relied on a written Outline of Submissions.
Conclusions
Mr Kaplan of Counsel, for the Child Support Registrar, objected to some of the Appellant’s affidavit material, noting that the material sought to be relied on had not been before the Tribunal. One such example is a copy of Consent Orders made in the Family Court of Australia on 22nd March 2013, which clearly post-dated the Tribunal hearing on 15th March.
The Court does not have jurisdiction to receive fresh material in an appeal under s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) (see Schmidt & Geller (SSAT Appeal)[1]).
[1] [2012] FMCAfam 735
It should also be noted that appeals under s.110B of the Act are confined to questions of law and it is not open to an appellant to challenge the merits (i.e. the factual findings) of the Tribunal decision (LDME & JMA (SSSAT Appeal[2]).
[2] (2007) 214 FLR 124; [2007] FMCAfam 712
Turning to the Amended Notice of Appeal itself, Grounds 4, 5 and 6 all claim that the Child Support Agency (more correctly, the Child Support Registrar) erred in law by registering (Grounds 4 and 5) and enforcing (Ground 6) the Order of the (Court omitted).
These three grounds of appeal are all misconceived. It is not open to revisit a decision of the Child Support Registrar on an Appeal against a decision of the Social Security Appeals Tribunal. The Registrar’s decisions were reviewed by the Tribunal.
Grounds 4, 5 and 6 do not allege any error of law by the Social Security Appeals Tribunal. Consequently, they must be dismissed.
The Appellant’s Ground 7 alleges that the Social Security Appeals Tribunal erred in law by failing to consider and apply s.4 of the Family Law Act 1975 (Cth), Reg. 38(2) of the Family Law Regulations 1984 (Cth), and s.152(2) of the Child Support (Assessment) Act 1989 (Cth).
Section 4 of the Family Law Act 1975 is a definitions section of the Act. As Counsel for the Registrar submits, the section had no relevance to the issues before the Tribunal.
Regulation 38(2) (or rather, subregulation 38(2)) of the Family Law Regulations 1984 refers to sub-reg 36(1), which states that an order made under regulation 36 is provisional if the relevant jurisdiction s one of a list of jurisdictions, and states that an order is final if the reciprocal jurisdiction is any other jurisdiction.
This subregulation is not relevant to the task that the Tribunal had to undertake. As Mr Kaplan submitted, there was no evidence before the Tribunal to show that an Australian Court had made an order under reg. 36.
Similarly, the Tribunal did not err in law by failing to consider and apply s.152(2) of the Child Support (Assessment) Act 1989. This subsection states:
(2) If:
(a)at any time, an amount of child support for a child becomes payable by a liable parent to another person under an administrative assessment; and
(b)at that time, the liable parent and the other person are both residents of Australia; and
(c)immediately before that time, an overseas maintenance liability had effect under which maintenance for the child was payable by the liable parent to the other person;
the overseas maintenance liability ceases, at that time, to have effect.
It was submitted on behalf of the Child Support Registrar that the (state omitted) Court order, whilst it imposed a liability to pay maintenance, it was a liability for spousal maintenance and not a liability to pay maintenance for the child.
I also note that s.152(2) at paragraph (b) contained the requirement that the liable parent and the other person are both residents of Australia. It is clear that in this case the mother of the child was not a resident of Australia but a resident of the United States.
Clearly, s.152(2) of the Child Support (Assessment) Act was not relevant to the matters that the Tribunal had to consider.
No error of law is disclosed in Ground 7 of the Amended Notice of Appeal and is must be dismissed.
Order
The Amended Notice of Appeal will be dismissed and the Tribunal decision will be affirmed.
Any application for costs should be made within 28 days. I note that the Appellant sought an order for costs, but as he was not legally represented throughout the proceedings it is not open to the Court to make a costs order in his favour.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 25 July 2016
0
2
5