Larson and Martell and Anor

[2013] FCCA 1815

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARSON & MARTELL & ANOR [2013] FCCA 1815

Catchwords:
CHILD SUPPORT – Whether pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989, a departure application should be heard at the same time as an appeal from a decision of the SSAT.

Legislation:

Child Support (Assessment) Act 1989, s.116(1)(b)

Child Support (Registration and Collection) Act 1988, Part VIIA
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006

Applicant: MS LARSON

First Respondent: MR MARTELL

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLC 6417 of 2012

Judgment of: Judge Hughes

Hearing date: 1 October 2013

Date of Last Submission: 1 October 2013

Delivered at: Melbourne

Delivered on: 8 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Sevdalis

Solicitors for the Applicant: Logie Smith Lanyon Lawyers

Counsel for the First Respondent: Mr Strum

Solicitors for the First Respondent: Farrar Gesini Dunn

Counsel for the Second Respondent: Mr Maat

Solicitors for the Second Respondent: Australian Government Solicitors

ORDERS

1. The oral application pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989 is dismissed.

2. The initiating application filed on 27 September 2013 is dismissed.

3. The subpoenas issued on 26 August 2013, 29 August 2013, 2 September 2013 and 9 September 2013 are struck out.

4. The appellant shall, by 18 November 2013, file and serve an amended Notice of Appeal.

5. The proceedings are adjourned to 22 November 2013 for mention and directions in relation to the appeal.

6. The costs of all parties are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6417 of 2012

MS LARSON

Applicant

And

MR MARTELL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. These are interim proceedings in which the applicant seeks an order pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989 (the Assessment Act) for the Court to hear an application for departure from the administrative assessment of child support at the same time as it hears an appeal from a decision of the Social Security Appeals Tribunal (“SSAT”).

2. To put the arguments in context, it is necessary to set out some of the procedural history.

The appeal

1. On 15 May 2013 a notice of appeal from the decision of the SSAT of 23 April 2013 was filed. 

2. As with many unrepresented litigants, the formal grounds of appeal are really a mixture of grounds, evidence and submissions.  Paraphrasing, the grounds of appeal seem to be as follows:

   i)The SSAT erred by refusing to backdate the period of the assessment to the date of birth of the child, (omitted) 2009, as permitted by an order made by Federal Magistrate Riethmuller (as he then was) on 14 December 2012, instead backdating it only to 15 December 2011.

   ii)The SSAT failed to compel the production by the respondent of documents relevant to his financial circumstances and accepted the oral evidence of the respondent even where it conflicted with other evidence about his income and assets.

   iii)The Tribunal failed to take account of the inconsistency between the evidence of the respondent that he had only one bank account and the evidence comprising his payslips which indicated he had at least one other; and the inconsistency in his evidence about the date of birth of his youngest child.

   iv)The SSAT failed to consider the appellant’s evidence in relation to her employment and income status after 16 July 2013.

3. The relevant administrative assessment of child support was made on 15 January 2011.  On 15 December 2011 the appellant requested a change to the assessment.  The relevant stages of the administrative review process occurred as follows:

Date	Action
15 January 2011	Administrative assessment of child support issued.
15 December 2011	Request by appellant for a departure from the administrative assessment.
17 May 2012	Determination by a senior case office to depart from the administrative assessment for the period of 15 December 2011 to 30 June 2012, after which the existing administrative assessment was to apply.
2 July 2012	Objection to the decision of the senior case officer filed by the appellant.
15 August 2012	Objection disallowed.
11 September 2012	Application for review of the decision by the SSAT.
23 April 2013	SSAT decision made.

1. The order made on 14 December 2012, referred to by the appellant is as follows:

   Pursuant to s. 112 of the Child Support (Assessment) Act 1989 leave be granted to the Child Support Registrar to make a determination, including any variation to a previous assessment in relation to the child X born (omitted) 2009 for any child support period that is more than 18 months.

2. That order was made after the application for review by the SSAT had been lodged but before the determination by the Tribunal.

3. The first return date for the appeal was 15 July 2013. 

4. As noted, the first ground of appeal was that the SSAT had erred in failing to consider the period from 19 May 2009 to 14 December 2011.  However, that period had never been the subject of an administrative assessment of child support.  Given the role of the SSAT is to review the decisions made by the Registrar, it cannot consider any periods beyond those covered by the Registrar’s decision.  On 15 July 2013, the appellant accepted that she needed first to go through the administrative process in relation to that period and the first ground of the appeal was dismissed.

5. It is clear from the appellant’s documents that the gravamen of grounds 2 and 3 of the appeal is that the SSAT refused the appellant the opportunity to obtain and present evidence to establish that the respondent’s financial circumstances were different to what he asserted.  The appellant said she requested that subpoenas be issued for the purpose of the SSAT proceedings.  She said she was told there was no mechanism for the issuing of subpoenas but that notices to produce documents could be issued.  She said her request for that to occur was refused and that, as a result, the Tribunal decided the issues on the evidence before it, which was inadequate given the lack of discovery by the respondent. 

6. On 15 July 2013 the appellant was told that, for the purpose of the appeal, she would need to provide a transcript of the proceedings before the SSAT or at least relevant excerpts to establish that she had requested discovery and had been refused.  She said she understood that. 

7. The appeal was adjourned to 4 October 2013 for hearing.  

The first departure application - 15 May 2013

1. On 15 May 2013, as well as filing the appeal, the appellant filed an initiating application, an affidavit, a financial statement and nine subpoenas.  That application was also listed on 15 July 2013.  The application, in summary, sought a departure from the same administrative assessment which was the subject of the SSAT appeal.  It was summarily dismissed on 15 July 2013.

2. The respondent had filed an objection to all nine subpoenas.  The subpoenas were struck out on the basis that they were not in proper form as they required the compilation of information rather than the production of documents.

3. On 29 August 2013 the appellant caused to be re-issued all nine subpoenas.  Three additional subpoenas were issued on 9 August, 2 September and 9 September 2013.  For the subpoenas directed to financial institutions the appellant changed the wording slightly to make it clear that what was sought were “copies of the following documents” but then, rather than list the documents sought, she simply sought the same information as previously. 

4. On 5 September 2013 the respondent filed a notice of objection to each of the subpoenas filed by then.

The second departure application - 27 September 2013

1. On 27 September 2013 the appellant filed a new initiating application, supported by an affidavit and a financial statement. 

2. Order 1 of the initiating application sought a review of the decision of the SSAT dated 24 April 2013.  This is a straight duplication of the pending appeal. 

3. The second order sought that there be a departure from the administrative assessment of child support for the period of (omitted) 2009 (the birth of the child) to 30 June 2014.  This is identical, in substance, if not form, to the application dismissed on 17 July 2013. 

4. The first return date of the application was 1 October 2013. On that date the appellant was represented by counsel who argued that, pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989, the court should hear the departure application at the same time as it hears the appeal.  She argued that it would be convenient and cost effective for the parties to have all child support matters determined in the one court at the one time.  That application was opposed by the respondent father and by the second respondent, the Child Support Registrar. 

5. Section 116(1)(b) provides as follows:

   (1)    A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:

   …

   (b)    both of the following apply:

   (i)      the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii)    the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case;

6. Counsel for the respondent father and counsel for the Child Support Registrar both argued that an appeal from a decision of the SSAT could not be viewed as an application within the meaning of section 116(1)(b). Having considered the matter, I agree.

7. Part VIIA of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) was introduced as part of major reforms to the Child Support Scheme in 2006. Those reforms introduced the requirement for reviews of decisions of the Child Support Registrar to be heard by the SSAT, rather than a court exercising jurisdiction under the Act.

8. Section 116(1)(b) of the Assessment Act was introduced as part of the same reforms. It is designed to allow a court, as a matter of convenience to the parties, to hear and determine an application for a departure from an administrative assessment at the same time as it hears another application involving one or both of the parties, rather than the parties having to first go through the administrative review processes of the Child Support Agency and the SSAT. That is apparent from the wording of the subsection and is supported by the apparent legislative intent evident in the Explanatory Memorandum to the Bill which introduced the reform Act and which was relied upon by counsel for the Child Support Registrar.[1]  The relevant portion of the Explanatory Memorandum is found at page 141 and is as follows:

   That is, if there are other matters before the court that involve one or the other of the parents, for example family law or bankruptcy matters, then the parent can ask the court also to consider the child support matter, without first going through internal review.  The court may consider whether to hear the child support matter together with the other matter.  If the court chooses not to hear the child support matter, the parent must go through the internal review processes.

   [1] Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006

9. The subsection refers to an application pending in a court, not proceedings in a court.  Although it could be argued that an appeal is a type of application, namely, an application for a review of a decision, I am persuaded that this is not what is contemplated by the subsection. 

10. The hearing of an appeal from an SSAT decision is substantially different in nature to a hearing of “an application pending in a court”.  In the hearing of an application there would normally be evidence given and the opportunity for a testing of that evidence through cross-examination.  In the hearing of an appeal from an SSAT decision there is no testing of evidence as the appeal lies only on a question of law and is argued on the basis of submissions only on the evidence before the Tribunal.  There would, therefore, be no convenience to the parties because the two proceedings could not be heard together.

11. However, the most persuasive argument made by both respondents is that to allow a departure application to proceed at the same time or close in time to the appeal would undermine the integrity of the legislative scheme. If the court allowed parties to bring a departure application under s.116(1)(b) of the Assessment Act whenever there was an appeal from an SSAT decision, it would allow an appeal to be a mere stepping stone to a wholesale merits review which was clearly not the intention of the legislature.

12. For these reasons I am satisfied that it is not appropriate to allow the appellant to bring an application for departure in this Court simply because she has a pending appeal.  Accordingly, the application filed by her on 27 September 2013 will be dismissed.

13. In these circumstances the subpoenas issued by the appellant have no role to play.  The nature of the enquiry by this Court is whether or not the decision of the SSAT is affected by error of law.  The case is a little unusual in that the argument made by the appellant is that the Tribunal did not accede to her request to ensure adequate discovery by the respondent.  Any material produced in answer to a subpoena cannot be relevant to that enquiry.  Accordingly I will order that each of the eleven subpoenas issued by the appellant be struck out.

14. Counsel for the respondent father submitted that the affidavits filed by the appellant are similarly not relevant to the appeal.  However, the nature of the appeal is such that the appellant bears the evidentiary onus of establishing (amongst other things) that she requested the Tribunal to compel or facilitate the provision of relevant information which was refused.  For that reason her affidavit material may be relevant and I decline to strike it out, at least at this stage. 

15. On 1 October 2013, all parties agreed that the appeal would not be ready to be heard on 4 October and that hearing date was vacated.  Counsel for the appellant agreed that an amended notice of appeal needs to be filed by her client.  I will list the matter for directions after the date for filing of the amended notice.

16. It appears to be common ground that there is no transcript or audio recording of the proceedings before the SSAT.  Although that is inconvenient, all parties agreed that the appeal ought to proceed in any event without the transcript.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date:  8 November 2013

Corrections

1. In paragraph 9 of the Reasons for Judgment the date 14 November 2011 was replaced with 14 December 2011.