Laracy and Laracy and Anor (SSAT Appeal)

[2014] FCCA 491

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARACY & LARACY & ANOR (SSAT APPEAL) [2014] FCCA 491

Catchwords:
CHILD SUPPORT – Appeal – appeal from decision of Social Security Appeals Tribunal – appeal is on a question of law – grounds of appeal must allege an error of law by the SSAT – merits review impermissible.

PRACTICE & PROCEDURE – Parties to an Appeal are the parties to the review when the SSAT made the relevant decision – Child Support Registrar joined as a Respondent.

PRACTICE & PROCEDURE – Subpoenas – subpoenas seeking production of documents going to a party’s financial situation – not relevant – subpoenas set aside.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110D

Cases cited:
Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam544; (2011) 45 Fam LR 657

Appellant: MR LARACY

First Respondent: MS LARACY

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 313 of 2014

Judgment of: Judge Scarlett

Hearing date: 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Sydney

Delivered on: 12 March 2014

REPRESENTATION

The Appellant: In person

Counsel for the First Respondent: Mr Longworth

Solicitors for the First Respondent: Somerville Legal

Solicitor for the Second Respondent: Mrs James

Second Respondent: Department of Human Services

ORDERS

1. The Child Support Registrar is joined as Second Respondent to the Appeal.

2. The subpoenas issued to Ms Laracy, the (omitted), the (omitted), and the (omitted) Pty Ltd are set aside.

3. By 2 May 2014 the Appellant is to file and serve an Amended Notice of Appeal:

   (a)naming MS LARACY as the First Respondent to the Appeal and the CHILD SUPPORT REGISTRAR as the Second Respondent; and

   (b)setting out a ground or grounds of appeal on a question or questions of law.

4. The Appeal and the Application in a Case filed on 14 February 2014 are adjourned to Tuesday 13 May 2014 for mention only at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 313 of 2014

MR LARACY

Appellant

And

MS LARACY

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Appeal

1. This is an Appeal against the decision of the Social Security Appeals Tribunal posted on 23^rd December 2013. The Appellant has also filed an Application in a Case on 14^th February 2014 seeking a stay of enforcement by the Child Support Registrar or the Department of Human Services until his Appeal has been finalised.

2. The Appellant’s former wife, who is the Respondent to the Appeal and the Application in a Case, opposes the Appeal and the Application.

3. The Notice of Appeal is defective and the Appellant will need to file and serve an amended Notice of Appeal.   

Parties to the Appeal

1. The Notice of Appeal names only the Appellant’s former wife as the Respondent to the Appeal. The Child Support Registrar is not named as a Respondent.

2. Appeals to this Court or the Family Court of Australia from decisions of the Social Security Appeals Tribunal on a question of law in relation to a review under Part VIIA of the Child Support (Registration and Collection) Act 1988 (Cth) are covered by the provisions of Division 3 of Part VII of the Act.

3. The parties to an Appeal are the parties to the review before the Social Security Appeals Tribunal (SSAT) when the SSAT made the relevant decision (Child Support (Registration and Collection) Act 1988, s.110D).

4. In this case, the parties to the review before the SSAT were Mr Laracy as Applicant and Ms Laracy and the Child Support Registrar as the Other Parties. Consequently, the Child Support Registrar should be joined as the Second Respondent to the Appeal.

Appeals on a Question of Law

1. Section 110B of the Act provides that:

   A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.

2. The meaning of an appeal on a question of law was succinctly set out by Brown FM[1] in Carrigan & Fredericks (SSAT Appeal)[2] at [96]-[98]:

   96.The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 have significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.

   97.Pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.

   98.As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.[3]

   [1] As his Honour then was

   [2] [2011] FMCAfam 544; (2011) 45 Fam LR 657

   [3] Footnotes omitted

3. His Honour also went on to state at [101]-[103]:

   101.Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not allow evidence to be adduced in the hope advocated by any appellant that an error of law will thus be demonstrated.

   102.Accordingly, this court should not be concerned as to whether or not is would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law, as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.

   103.It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of the court to examine the merits of the decision.[4]

   [4] [2011] FMCAfam 544 at [101]-[103]

4. An examination of the four grounds of appeal set out in the Appellant’s Notice of Appeal shows clearly that the first two grounds and the fourth ground are in the nature of merits review, i.e. a challenge to the factual findings of the Tribunal.

5. It is only the third ground, which is general and unparticularised, “Findings were made yet not supported by evidence”, that may, if properly pleaded, constitute a claim of an error of law.

6. The Appellant will need to file and serve an Amended Notice of Appeal before the next occasion that the matter is before the Court.

Objections to Subpoenas

1. The Appellant has issued four subpoenas to which objections have been taken by his former wife. One is to her, the other three are to:

   a)(omitted) Pty Ltd;

   b)(omitted); and

   c)(omitted).

2. The subpoena to Ms Laracy seeks copies of tax returns, Group Certificates or Payment Summaries, bank statements and home loan mortgage instalments.

3. The subpoena to (omitted) Pty Ltd seeks copies of Group Certificates and Payment Summaries relating to Ms Laracy.

4. The subpoena to (omitted) seeks copies of Group Certificates and Payment Summaries for Ms Laracy.

5. The subpoena to (omitted) seeks accommodation records for all (omitted) students who have boarded at a particular address.

6. Ms Laracy’s solicitors have lodged Notices of Objection to all four of those subpoenas on the grounds that:

   a)they seek the production of documents that are not relevant to the Appeal; and

   b)they are an abuse of process.

7. The purpose for which the subpoenas have been issued is to lead evidence relating to Ms Laracy’s financial circumstances. This purpose indicates a misconception on the part of the Appellant, because the Court will not deal with matters going to a challenge of the Tribunal’s factual findings. It is not the case that fresh evidence of this nature will be relevant. If the evidence is not relevant, it is not admissible.

8. The subpoenas will be set aside and the documents will be returned to the parties who produced them.  

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  2 April 2014