Holman & Child Support Registrar & Ors (SSAT Appeal)

[2014] FCCA 2352

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLMAN & CHILD SUPPORT REGISTRAR & ORS (SSAT APPEAL) [2014] FCCA 2352

Catchwords:
CHILD SUPPORT – Ruling on adjournment and recusal applications. 

Legislation:  
Child Support (Assessment) Act 1989

Applicant: MR HOLMAN

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: SOCIAL SECURITY APPEALS TRIBUNAL

Third Respondent: MS VINGE

File Number: MLC 4842 of 2013

Judgment of: Judge Burchardt

Hearing date: 14 August 2014

Date of Last Submission: 14 August 2014

Delivered at: Melbourne

Delivered on: 14 August 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Maat

Counsel for the First Respondent: Australian Government Solicitor

The Second Respondent: No appearance

The Third Respondent: In person (by telephone)

IT IS NOTED that publication of this judgment under the pseudonym Holman & Child Support Registrar & Ors (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 4842 of 2013

MR HOLMAN

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

SOCIAL SECURITY APPEALS TRIBUNAL

Second Respondent

MS VINGE

Third Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. The applicant seeks that I recuse myself and that in any event this matter be adjourned.  In temporal turns, the application for recusal followed forthwith upon my indication that I was not prepared to contemplate adjourning the matter generally. 

2. To put the matter in its proper context, it is appropriate to refer to the history of this proceeding.  On 19 June 2013, an application was filed by the applicant.  The first respondent to that application was the Child Support Agency and the second respondent was Ms Vinge. 

3. That application sought the stay of back payment awaiting the outcome of an application to change assessment due to special circumstances and the affidavit in support filed by Mr Holman detailed the capital gain which had distorted his income significantly in the 2011 to 2012 tax year.  On 30 July 2013, I made a final order which effectively granted a stay pending the assessment to which the applicant had referred.  On 21 March of this year, a further application was filed.  It purported to be an appeal against the decision of the Social Security Appeals Tribunal.  The orders sought were as follows: 

   “(1) That the decision of Mr J of the Social Security Appeals Tribunal be dismissed or set aside on the grounds that he has made an error of law in regards to his interpretation of subparagraph 117(2)(b)(ia) of the Child Support (Assessment) Act 1989 and that he did not have grounds to establish on account of the children’s special needs.

   (2)  That any increased child support moneys, being $2,750, directed to be paid by the applicant to Ms Vinge as a result of her appeal to SSAT be immediately withdrawn.”

4. The affidavit filed in support of the application set out a detailed set of criticisms of Mr J’s decision in the SSAT.  I note that the decision itself is in fact appended to the affidavit.  The matter was in Court on 9 May 2014 and I listed it for a half day.  Albeit that the date was not, it seems, indicated there and then, it was in the orders that were sent out shortly thereafter.  I granted leave to Mr Holman to file his notice of appeal in Court, this notice taking care of a preliminary objection on the part of the Registrar that the application in a case was technically deficient. 

5. I note that the notice of appeal shows a sophisticated familiarity with the Child Support (Assessment) Act 1989.  There the matter stood until 12 August 2014, effectively, - I leave aside the affidavit material the parties have themselves filed for these purposes, - when the Child Support Registrar filed an outline of submissions.  It runs to some eight pages.  It should be noted that there was no obligation on the Child Support Registrar to file anything at all.  It was perfectly open to the Registrar to attend Court and make, orally, all the submissions set out in the written outline.  I would infer that it was as a matter of courtesy and proper conduct that the Registrar filed the materials concerned. 

6. These were forwarded, it would appear, to the applicant by email shortly after 5:00 pm on Monday.  They were forwarded to an email address set out by the applicant on his notice of appeal.  At 9.30 this morning, the matter came on before the Court and Mr Holman informed me that he had only received these written submissions late last night, I stood the matter down until 10:00 am to give him an opportunity to read them.  It should be noted that the submissions by the Child Support Registrar amount in substance to the proposition that the applicant’s grounds of appeal constitute merits review and do not raise any question of law. 

7. Self-evidently, I do not have transcript of the hearing at 10:00 am and the position was somewhat fluid, but my recollection of the matter is that the applicant sought an adjournment and I offered him until

   
   

   2:00 pm to have further time to consider the Registrar’s submissions.  Mr Holman said he was unavailable as he, had to work.  He went on to say that if the matter was adjourned he would not be available until February 2015.  He said he needed much more time to consider and respond to the Registrar’s outline of submissions and when I inquired why he might not have attended to his emails earlier he said he had no internet at home. 

8. But as I repeat, again, the email address to which the material was sent was the address he himself had nominated in his notice of appeal.  In my view, it was entirely reasonable for the Registrar to send the materials there.  I indicated that I was not prepared to adjourn until February next year, upon which the applicant sought my recusal and said that my conduct showed that I was biased.  He said words to the effect that I had described the amount in issue – which I note appears to be some $2,500 – as trivial or some such phrase on a previous occasion. 

9. I do not purport to remember whether I did or did not make that observation but $2,500, while obviously a sizeable sum in itself, is a small one in the scheme of matters in this Court.  I would also note that my earlier remark gave rise to no application for recusal at the time.  It seems clear that the application for recusal rises essentially from disappointment at my refusal to adjourn.  I will give my reasons about that refusal now. 

10. First, the applicant clearly has a good understanding of the law in this area, as is shown by the materials in this file.  He is, as those materials indicate, an educated and intelligent man.  The Registrar’s submissions are easy to follow, even for a non-lawyer.  The applicant asserts that he needs, as it were, to check and cross-reference the facts referred to in this Registrar’s submissions.  In fact, the Registrar’s submissions merely repeat, and to only a limited extent, some factual findings in the SSAT’s decision subject to the appeal.  That decision itself is only eight pages long and it is quite clear that the applicant is intimately familiar with the appended terms. 

11. There is no reason, in my view, why it is in any way unreasonable to require the applicant to respond to the Registrar’s submissions today.  The applicant further says that this matter was listed for half a day and he is unavailable this afternoon.  The Court is available this afternoon.  The applicant is a [occupation omitted].  I have no doubt his employer would release him if he informed his employer the Court required him to stay.  The Court’s time is scarce.  The matter has been on foot in a global way for over a year.  The parties are entitled to finality.  In all these circumstances, in my view, it is clearly inappropriate to adjourn. 

12. Turning, then, to the recusal issue.  This ruling that I have just made as to the adjournment would not lead a reasonable and informed lay observer to conclude that I am unable to bring an impartial mind to the case, nor would my earlier remarks, if made, lead to any such conclusion.  Although the amounts that are involved are objectively small, this matter was nonetheless listed with expedition and I note that it is essentially in the applicant’s interests that the hearing be expedited.  The course of conduct with which I have dealt with this application would not give rise to any reasonable and informed lay observer that I have formed a position of pre-judgment and I decline to recuse myself.  The Court in the matter will now proceed. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 August 2014