LDME & JMA (SSAT Appeal)
[2007] FMCAfam 712
•13 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LDME & JMA (SSAT APPEAL) | [2007] FMCAfam 712 |
| CHILD SUPPORT – Appeal from decision of SSAT – nature of proceedings – need to identify question of law raised by appeal – connection between question of law and orders sought – discerning error of law from tribunal’s reasons – relief discretionary. CHILD SUPPORT – Appeal from decision of SSAT – form of Notice of Appeal – requirement to specify “Grounds of appeal” – what “Grounds of appeal” should address. CHILD SUPPORT – Appeal from decision of SSAT – power of court to make findings of fact and to admit evidence – whether court should hear and determine matter when SSAT through legal error gave no consideration to merits of review application. CHILD SUPPORT – Appeal from decision of SSAT – statutory time limit for appeal as fixed by rules of court –hiatus in rules fixing time limit – appealable decision made during hiatus – rule subsequently made fixing time limit – rule having effect of rendering any appeal by appellant thereafter out of time – appellant subsequently appealing – whether rule fixing time limit applies to appellant. |
| Child Support (Registration and Collection) Act 1988, ss.4, 87, 88, 103T, 104(1), 110B, 110C, 110E, 110F, 110G Child Support (Assessment) Act 1989, s.98S(3B) Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006, Schedule 3 Items 16, 69, 77, Schedule 4 Items 11, 18, 42 Federal Magistrates Act 1999, ss.3(2)(a), (b), 42 Social Security (Administration) Act 1999, s.141 Family Law Act 1975, s.4 Administrative Appeals Tribunal Act 1975, ss.44(1), (4), (5), (7), (8), (9) Federal Magistrates Court Rules 2001, rr.3.05(1), 25A.06(2) Family Law Rules 2004, r.4.22 Federal Court Rules 1979, O.53 r.3(2) |
| Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453 Burgess v Centrelink and Ors [2006] FMCA 1952 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 Repatriation Commission v Hill [2002] FCAFC 192, (2002) 69 ALD 581 Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143, (2003) 131 FCR 28, 37 AAR 309 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244, (2003) 202 ALR 450, 47 ACSR 649 Hartnett v Migration Agents Registration Authority [2004] FCA 50 Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232, (2003) 76 ALD 321, 38 AAR 55 Comcare v Etheridge [2006] FCAFC 27 Brown v Repatriation Commission [2006] FCA 914 Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | LDME |
| Respondent: | JMA |
| File number: | PAC 3395 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 13 September 2007 |
| Date of last submission: | 13 September 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 13 September 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Evans |
| Solicitors for the Respondent: | Self Represented |
| Solicitors for Child Support Agency appearing Amicus Curiae: | Mr McWhinney |
ORDERS
The mother's appeal against the decision of the Social Security Appeals Tribunal (the Tribunal) made on 9 May 2007, is allowed.
The decision of the Tribunal is set aside and the case is remitted to the Tribunal to be heard and decided again.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT EVANS & ASKEW |
PAC3395 OF 2007
| LDME |
Applicant
And
| JMA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Social Security Appeals Tribunal (the SSAT) on a question of law under s.110B, Child Support (Registration and Collection) Act 1998 (the Registration Act). The right of appeal on a question of law from a decision of the SSAT on a merits review of certain decisions of the Child Support Registrar (the Registrar) commenced on 1 January 2007. I am unaware of any prior decision in a section.110B appeal.
The mother also sought an order to stay recovery action by the Registrar in relation to arrears of child support for the period
1 July 2004 to 31 December 2005. In his Response the father sought an order that the mother pay the outstanding child support arrears, and opposed the orders sought by the mother. I will deal in these reasons only with the mother's SSAT appeal.
The Court was assisted by the solicitor for the Registrar, who appeared as amicus curiae.
Background facts
The following facts, up to the delivery of the reasons for decision of the SSAT, are taken from the reasons for decision. The facts thereafter relate to the history of these proceedings.
The parties have one child, ITA born 11 January 1993, now aged 14. The mother has been assessed to pay child support for ITA to the father.
On 8 July 2004 the father lodged a change of assessment application under Part 6A of the Child Support (Assessment) Act 1989 (the Assessment Act). A Senior Case Officer made a departure determination on that application, increasing the mother's child support income amount to $42,000 for the period 1 July 2004 to 31 December 2005, based on evidence the mother gave in parenting proceedings in which the parties had been involved in the Family Court of Australia. The mother unsuccessfully objected to this decision under Part 6B of the Assessment Act, her objection being disallowed on 15 November 2004.
The mother made an unsuccessful change of assessment application that was refused by the Registrar under s.98F of the Assessment Act on 9 November 2005.
On 7 September 2006, the mother lodged another change of assessment application with the Registrar. The application related to the child support periods from 1 July 2003 until 30 June 2006. For all of this period except 1 July 2004 to 31 December 2005, the period dealt with by the departure determination made in 2004, the mother was assessed at the minimum amount of child support. The mother's application was refused by the Registrar.
The mother objected to this decision, and her objection was disallowed on 19 January 2007. While initially made under Part 6B of the Assessment Act, as a result of amendments to the Assessment Act and the Registration Act that commenced on 1 January 2007, the objection application was determined under the new internal objection provisions of Part VII of the Registration Act.
On 16 February 2007, the mother applied to the SSAT to review the Registrar’s decision on her objection. Both parents participated in the hearing of the review application. The Registrar did not participate in the review.
The SSAT decided the mother's application on 9 May 2007. Reasons for its decision were sent to the parties on 18 May 2007.
In its reasons for decision, the SSAT identified two issues it addressed, namely:
“7.Does the Tribunal have the jurisdiction to hear this application?
8.If the Tribunal does have jurisdiction to hear this application has (the mother) established reasons for departing from the assessment?”
The Tribunal decided that “it has no jurisdiction to decide the matter because it relates to a child support period greater than 18 months ago”. In the SSAT’s opinion, the second issue therefore did not arise, and hence it did not consider the merits of the mother's application. The mother's review application was unsuccessful.
On 18 June 2007, the mother, then apparently without legal representation, filed an application seeking orders granting her leave “to apply for an amendment of the Administrative Assessment period
1 July 2004 until 31 December 2005”, and that “pursuant to Section 118 of the Child Support (Assessment) Act 1989 the Court vary the rate of Child Support payable by the liable parent to the minimum annual rate”. She also sought an order “that this Honourable Court stay or otherwise restrain the Registrar in Child Support (sic) from enforcing and or recovering arrears of Child Support for the period 1 July 2004 until 31 December 2005”.
The mother's solicitor subsequently came onto the record and he appeared on her behalf.
When the matter came before me on 13 July 2007 and it appeared that the mother was aggrieved by a decision of the SSAT on a review under Part VIIA of the Registration Act, I ordered the mother to file and serve a Notice of Appeal and any amended application by 3 August 2007. The mother filed a Notice of Appeal against the decision of the SSAT of 9 May 2007 on 1 August 2007. She did not file an amended application.
The relevant statutory provisions
A right of “appeal” from decisions of the SSAT
This appeal is brought under s.110B of the Registration Act, which provides:
“110B A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
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.
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.”
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.”
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”
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”
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.
Under the Federal Court Rules 1979, the Notice of Appeal under s.44 must state, among other things, “the question or questions of law to be raised on the appeal” (O.53 r.3(2)(b)) and “the grounds relied upon in support of the orders sought” (O.53 r.3(2)(d)). A Notice of Appeal under s.110B must state the “Grounds of appeal”. The Instructions for Completion of this form, at paragraph 4, state “The grounds of appeal must explain briefly the basis on which the orders are sought”.
Some decisions in relation to s.44 appeals that emphasise the requirement of the Federal Court Rules to state in the Notice of Appeal the question or questions of law to be raised on the appeal and to separately set out the grounds of appeal, suggesting that strict compliance with the rule is required (see, for example, Ibarcena v Secretary, Department of Family and Community Services [2001] FCA 453 at [2], (2001) 33 AAR 76 at 77), need to be read subject to the qualification that no equivalent requirement explicitly exists for a s.110B Notice of Appeal.
However, in my view, what was said of s.44 and O.53 r.3(2)(d) in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524, cited with approval in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232 at [13] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55, is relevant in discerning what the requirement to set out the “Grounds of appeal” in a s.110B Notice of Appeal entails:
“Because the appeal under s.44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal ‘grounds’ which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O.52 r.13(2)(b) which requires a notice of appeal of that wider kind to state ‘briefly, but specifically, the grounds relied upon in support of the appeal’. The distinction is recognised by O.53 r.3(2)(d) which requires the notice of appeal under the AAT Act to state only ‘the grounds relied upon in support of the order sought’. In the present case the order sought is that ‘the Decision of the Tribunal be set aside’. Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.”
In explaining the connection between the question of law, the grounds relied on and the orders sought, Branson and Stone JJ said in Birdseye (at [18]):
“18. In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.”
Despite the focus in these passages on provisions of the Federal Court Rules that are not replicated in this Court’s rules, the underlying reasoning is nonetheless relevant, in my view, to a section 110B appeal.
The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.
Notwithstanding this ideal, in my view this Court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s.42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates Court Act (see especially s.3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s.44 appellant has been recognised in this Court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink and Ors [2006] FMCA 1952 at [5] and [6]).
I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal. Especially with unrepresented litigants, the Court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.
Of even greater significance in my view is the guidance the above mentioned cases provide to the Court in deciding a section 110B appeal. They illustrate the analysis and process of reasoning required in deciding such an appeal.
Thus, of relevance to s.110B appeals in my view are cases on s.44 appeals in relation to:
·what is a “question of law” (for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 at 394-399; Repatriation Commission v Hill [2002] FCAFC 192 at [59], (2002) 69 ALD 581; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [6] – [8], (2003) 131 FCR 28, 37 AAR 309); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [45] and [46] per Branson J, (2003) 202 ALR 450, 47 ACSR 649; Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50])
·the centrality to the appeal on a question of law and its impact on the nature of the proceedings (for example, Birdseye above at [10] to [22] per Branson and Stone JJ, (2003) 76 ALD 321, 38 AAR 55: Saxby Bridge, above, at [107] per Jacobsen and Bennett JJ; Comcare v Etheridge above at [13] and [14] per Branson J, with whom Spender and Nicholson JJ agreed; Brown v Repatriation Commission [2006] FCA 914 at [7]);
·the necessary connection between the question of law raised on an appeal and the relief sought (for example, Birdseye, above, at [18] per Branson and Stone JJ; Saxby Bridge, above, at [47] per Branson J).
Discerning an error of law in the SSAT’s reasons
It is well settled that when reviewing an administrative decision for error, a court should not be “concerned with looseness in language nor with unhappy phrasing”, and “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic Enterprises Pty Ltd, above, at 287, cited with approval in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and see the comments of Kirby J to similar effect at 291).
The SSAT is an administrative tribunal, not a court of law, and is bound to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s.88, Registration Act, and compare s.141, Social Security (Administration) Act 1999). It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision (s.103X, Registration Act). The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.
Powers of court in appeals
The court “must” hear and determine an appeal from the SSAT, and “may” make such order as it thinks appropriate by reason of its decision (s.110F(1), Registration Act). The orders a court may make on a s.110B appeal include an order affirming or setting aside the decision of the SSAT, or an order remitting the case to be heard and decided again by the SSAT, either with or without the hearing of further evidence, in accordance with the directions of the court (s.110F(2)).
Three points may be made about the Court’s powers in a section 110B appeal.
First, the use of the word “may” clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).
Second, the power to make such order as the court thinks fit is qualified by the words “by reason of its decision”. The “decision” in this context is the decision on the hearing and determination of the appeal (s.110F(1)), the appeal being “on a question of law” (s.110B). Thus, the orders made must flow from a finding in favour of the appellant on an identified question or questions of law.
Third, the particular power under s.110F(2) to make the orders specified in that subsection does not limit the general power under s.110F(1) to make such order as the court thinks appropriate by reason of its decision on the appeal.
Time limit for an appeal
An appeal under s.110B must be instituted within the time prescribed by the applicable Rules of Court or such further time as is allowed under the applicable Rules of Court (s.110C). The applicable Rules of Court for this Court are the Federal Magistrates Court Rules 2001 (the FMCR) (see definition of “applicable Rules of Court” in s.4, Registration Act and s.4, Family Law Act 1975, and the definition of “related Federal Magistrates Rules” in s.4, Family Law Act).
The FMCR now provide that a person must file an appeal from a decision of the SSAT within 28 days of receiving a written statement of reasons for the decision under s.103X(3) or (5) of the Registration Act (r.25A.06(2), FMCR). The Court may extend a time fixed by the rules (r.3.05(1), FMCR).
This time limit was inserted into the FMCR by the Federal Magistrates Court Amendment Rules 2007 (No 1) (the Amendment Rules), that took effect on 27 June 2007. Thus, from the commencement of Part VIII, Division 3 of the Registration Act on 1 January 2007 until
27 June 2007, there was no time limit fixed for an appeal under s.110B to this Court from a decision of the SSAT. The Amendment Rules contain no application or transitional provisions to indicate how the time limit is to apply to decisions of the SSAT, notice of which was given to a party before the commencement of the amendments effected by those rules. That is the situation in this case, and I will return to this issue later.
I also observe that until the amendments to the FMCR that took effect on 27 June 2007, there was no form for a Notice of Appeal from a decision of the SSAT for use in this Court.
The submissions of behalf of the mother
In written submission on behalf of the mother, it was put that, having regard to the transitional provisions of Item 77, Schedule 3 of the New Formula Act, s.110 of the Assessment Act as in force immediately before the commencement of Schedule 3 of the New Formula Act, that is 1 January 2007, applied in this appeal. In the alternative, it was submitted that the mother sought “leave under Section 112 of the Amending Act for the Court to grant leave for the Applicant to lodge an application for amendment of the administrative assessment which is more than 18 months pursuant to Section 111 of the Amending Act (sic)”. It was then submitted that the Court should consider the 3 step process identified by the Full Court in Gyselman & Gyselman, (1991) 15 Fam LR 219, (1991) FLC 92-279.
The primary submission based on Item 77(3), Schedule 3 of the New Formula Act ignores the opening words of that provision, that is “If, before the commencement of this item” certain things occur, then the pre-1 January 2007 legislation applies. Relevantly to this appeal, the things that must occur before 1 January 2007 are an objection under Part 6B of the Assessment Act and a decision by the Registrar on that objection. While the mother's objection was made before 1 January 2007, the Registrar’s decision was made after that date, and hence the preconditions for the application of Item 77(3) do not exist.
In any event, the application provisions of Item 77 are irrelevant to whether or not s.110 as in force immediately before 1 January 2007 applies in this case. Division 3, Part 7 of the Assessment Act, of which s.110 is part, was repealed and a new Division 3 substituted by Item 14, Schedule 4 of the New Formula Act, not by any provision of Schedule 3. By Item 42, Schedule 4, the amendments effected by Item 14 apply to a change of assessment application under Part 6A made after the commencement of the Schedule, a decision on a Registrar initiated change of assessment under Part 6A of which the parties were notified after the commencement of the Schedule, and a departure application made to a court after the commencement of the Schedule even if it relates to a decision made before that commencement. These matters are not relevant to the pre-1 January 2007 terms of s.110, which dealt with an appeal to a court with jurisdiction under the Assessment Act about an incorrect particular in an administrative assessment of child support. They are relevant to the application of the new Division 3. Hence, the repealed s.110 cannot apply in this case.
Further, even if the repealed s.110 did apply, it did not provide a vehicle for a general review of the amount of child support payable by the mother, such as she is seeking. And it conferred no jurisdiction on this or any other court to entertain an appeal against a decision of the SSAT. The reference to Gyselman & Gyselman betrays confusion between Division 3 of Part 7 of the Assessment Act, of which former s.110 was a part, and Division 4 of Part 7, the departure order provision, to which Gyselman & Gyselman relates.
I therefore reject the primary written submission on behalf of the mother.
As to the alternative written submission, that the Court entertain an application for retrospectivity greater than 18 months and, inferentially, proceed to deal with the matter as a departure application under Division 4 of Part 7 of the Assessment Act, this raises the issue, dealt with in the reasons for the SSAT’s decision, of the application of the retrospectivity provisions in this case. This ultimately is the nub of the matter. I will deal with this later in these reasons
In oral submissions, the mother's solicitor put firstly that the SSAT review provisions did not apply in this case and that the mother could apply to the Court for a departure order under the pre-1 January 2007 provisions of Division 4 of Part 7 of the Assessment Act. In the alternative, he submitted that the retrospectivity limitation on a change of assessment under amendments to the Assessment Act that commenced on 1 January 2007 did not apply, that the SSAT made an error of law in finding that they did, and that the decision of the SSAT should be set aside and the Court should proceed to hear and determine the matter under s.110G of the Registration Act.
The father's submissions
The father appeared without legal representation, and understandably had some difficulty with what are complex and convoluted statutory provisions affecting this case.
The father submitted that the decision of the SSAT was correct and should stand. If the Court found otherwise, he submitted as I understand it that he would prefer the Court to finalise the matter immediately rather than remit the matter to the SSAT.
The submissions for the Registrar
The solicitor for the Registrar submitted ultimately that the 18 month retrospectivity provisions did not apply to this case, that the SSAT was in error if finding that they did, and that consistent with the legislative intent evident from the 1 January 2007 amendments, the matter should be determined administratively by the SSAT, not by the Court.
Was the mother's appeal filed out of time?
The mother filed her Notice of Appeal more than 28 days after notice of the decision appealed against was given to her. Thus, her appeal is apparently out of time under r.25A.06(2), FMCR. However, as mentioned, that time limit did not exist until 27 June 2007, by which time 28 days had already passed since the mother received notice of the SSAT’s decision. The mother's Notice of Appeal was filed on 1 August 2007, and thus more than 28 days after the commencement of the rule fixing the time limit. While the Notice of Appeal was filed within a time fixed by my order on 13 July 2007, that order cannot be taken to be an order extending time for the filing of the Notice of Appeal under r.3.05, as no application to extend time was made by the mother, and hence the father was not invited to address the court as to whether time should be extended. The purpose of the direction was to attempt to identify the nature of the relief the mother sought and the basis on which she sought it.
The first question to be resolved is whether the time limit imposed by r.25A.06(2) applies to the mother's appeal. It was submitted on behalf of the mother that the time limit did not apply. The fathers submitted that it did. The solicitor for the Registrar made no submission on this point.
While the Act speaks of a limitation period as fixed by or under the relevant rules of court, no such rules in fact existed in this Court until 27 June 2007. The amending rules that inserted the limitation period contain no application or transitional provisions.
An amending provision ought not be construed so as to limit or remove an existing right in the absence of an explicit intention to do so. The rule in its terms would at least limit, if not take away, an existing right where, as in this case, the 28 day time limit had already expired at the commencement of the rule and the rule applied to the appeal. The rule could have regulated pre-existing rights of appeal, consistent with s.110C of the Registration Act, by specifying a time after the commencement of the rule by which a Notice of Appeal from a decision of the SSAT, notice of which was given before the commencement of the rule, had to be filed. But it did not. Thus, either the amending rule applies to appeals from decisions notice of which was given before the rule commenced with the consequence that existing rights of appeal are thereby removed in some cases subject to the option of seeking an extension of time, or it does not with the consequence that there is no time limit for such appeals.
I note that the Family Law Rules 2004 were amended by the Family Law Amendment Rules 2007 (No 1), that commenced on 6 July 2007, to insert a similar limitation provision for appeals on a question of law from the SSAT, in the form of r.4.22, and they too contain no application or transitional provisions. Hence, they too may have the same consequences as r.25A.06(2) of the FMCR.
In the absence of any explicit intention to immediately render out of time the right of appeal against a decision notified to a party more than 28 days before the introduction of the time limit, I find that the time limit fixed by r.25A.06(2) does not apply to decisions, notice of which was given before the rule commenced, as to do otherwise may be to deprive potential appellants in some cases of a right of appeal. The mother's appeal therefore was not filed out of time.
The question of law raised by the appeal
As mentioned, the SSAT found it lacked jurisdiction to decide the mother's review application because “it relates to a child support period greater than 18 months ago.” The mother in the alternative first contends that the SSAT lacked jurisdiction, but for different reasons. In the second alternative, she challenges the legal correctness of the finding of the SSAT that the 18 month retrospectivity restriction applies, contending that s.98S(3B) of the Assessment Act does not apply in this case.
Strangely, the first alternative contention of the mother supports the finding of the SSAT that it lacked jurisdiction in the matter. It therefore could not support any order affecting the decision of the SSAT. I will however deal with this submission first, as it affects other aspects of the case and, on the view I take, leads to the necessity to deal with the second alternative contention.
The question of law raised by the second alternative contention may be expressed as:
“Did s.98S(3B) apply to the mother's review application?”
The following question of law also arises in consequence of the issue about s.98S(3B) and the SSAT’s finding of a lack of jurisdiction or power to deal with the mother's application:
“Did the SSAT lack jurisdiction or power to hear and determine the mother's review application?”
Does the SSAT have jurisdiction?
It was submitted on behalf of the mother that the mother's change of assessment application having been made and determined before
1 January 2007, the SSAT appeal procedures, which commenced to operate on 1 January 2007, did not apply, and that the pre
1 January 2007 provisions of the Assessment Act, in particular the departure order provisions of Division 4 of Part 7, continued to apply. It was submitted that this court retained jurisdiction to hear and determine a departure application under that Division.
If the mother were successful on this submission, it would not support the making of any orders affecting the decision of the SSAT, which found, for different reasons, that it lacked jurisdiction. However, the submission raises a significant point in this case relevant to the overall controversy between the parties, and it is convenient to deal with it in the context of the mother's appeal.
The mother's change of assessment decision was made and determined before 1 January 2007. She objected under Part 6B of the Assessment Act to the decision on her change of assessment application also before
1 January 2007. However, the Registrar had not determined her objection by 1 January 2007.
The amendments effected by the New Formula Act from 1 January 2007 included repeal of Part 6B of the Assessment Act (Item 16, Schedule 3, New Formula Act), and insertion of new internal objection procedures covering specified decisions of the Registrar under both the Assessment Act and the Registration Act as Part VII of the Registration Act (Item 69, Schedule 3, New Formula Act). The same Item in Schedule 3 of the New Formula Act also inserted the new Part VIIA in the Registration Act dealing with review applications to the SSAT from decisions of the Registrar under the new Part VII.
Part 2 of Schedule 3 of the New Formula Act contains the application provisions in relation to the amendments it effected. That is, whether and if so how pending matters are caught by the new internal objection procedures and the new SSAT merits review regime is to be determined by reference to Part 2 of this Schedule. Relevantly to this case, Item 77(1) – (5) provide:
77 Application—review of decisions
Decisions of the Registrar—internal review pending or not yet started at commencement
(1) Subject to subitem (3), Part VII (internal review) of the Registration and Collection Act (as amended by this Schedule) applies in relation to a decision made by the Registrar under that Act or the Assessment Act before or after the commencement of this item.
Note: Part VII of the Registration and Collection Act (as amended by this Schedule) also applies if a proceeding for internal review was pending under that Part or Part 6B of the Assessment Act immediately before the commencement of this item (see subitem (4)).
(2) Part VIIA (SSAT review) of the Registration and Collection Act (as inserted by this Schedule) applies in relation to a decision made by the Registrar under subsection 83(1) or 87(1) of the Registration and Collection Act after the commencement of this item.
Decisions of the Registrar—internal review completed before commencement
(3) If, before the commencement of this item:
(a) a person objected under:
(i) Part 6B of the Assessment Act; or
(ii) Part VII of the Registration and Collection Act;
to a decision (however described) of the Registrar (the original decision); and
(b) the Registrar made a decision (the objection decision) on the objection under:
(i) subsection 98ZC(1) of the Assessment Act; or
(ii) subsection 87(1) or 98(1) of the Registration and Collection Act;
those Acts, as in force immediately before that commencement, continue to apply in relation to the original decision and the objection decision.
Pending proceedings—internal reviews
(4) A proceeding before the Registrar that, immediately before the commencement of this item, was pending under:
(a) Part 6B of the Assessment Act; or
(b) Part VII of the Registration and Collection Act;
is taken, at that commencement, to be pending under Part VII of the Registration and Collection Act as amended by this Schedule.
(5) The Assessment Act and the Registration and Collection Act, as in force immediately before the commencement of this item, continue to apply in relation to a decision made by the Registrar before that commencement under:
(a) subsection 98ZE(1) of the Assessment Act; or
(b) subsection 91(1) or 101(1) of the Registration and Collection Act.
Schedule 3 of the New Formula Act commenced on 1 January 2007. It follows from these provisions that-
a)Under Item 77(4), the mother's objection under Part 6B of the Assessment Act, pending at 1 January 2007, was thereafter treated as an objection under the new Part VII of the Registration Act;
b)The decision by the Registrar on the mother's objection, made after 1 January 2007, was therefore a decision under s.87(1) of the Registration Act;
c)Under Item 77(2), the SSAT review provisions apply to the decision.
I therefore reject the submission on behalf of the mother that the SSAT review provisions did not apply in this case.
In relation to the suggestion that this court retained jurisdiction under Division 4 of Part 7 of the Assessment Act, the circumstances in which a departure order can be sought are set out in s.116, Assessment Act, which was amended from 1 January 2007 by Item 18 of Schedule 4 of the New Formula Act. Part 2 of Schedule 4 sets out the relevant application provisions for the amendments effected by the Schedule. Item 42 provides-
42 Application
The amendments made by items 11, 14, 17, 18 and 19 of this Schedule apply in respect of:
(a) an application made under section 98B of the Assessment Act after the commencement of this Schedule; and
(b) a determination in respect of which parties were notified under section 98M of the Assessment Act after the commencement of this Schedule; and
(c) an application made under section 116 of the Assessment Act after this item commences, even if the application relates to a decision made before the commencement of this Schedule:
(i) to make, or refuse to make, a determination under Part 6A of that Act; or
(ii) to make an administrative assessment under subsection 66(1) of that Act.
Schedule 4 of the New Formula Act commenced on 1 January 2007. The effect of Item 42(c)(i) is relevant to the mother's situation. The Registrar refused to make a departure determination under Part 6A of the Assessment Act before 1 January 2007. The mother filed an application purporting to seek a departure order under s.118, that is, Division 4 of Part 7, of the Assessment Act after 1 January 2007. Thus, the amendments effected by Item 18 of Schedule 4 do apply to the mother and preclude her from seeking a departure order from the Court other than in terms of the post-1 January 2007 terms of s.116.
For these reasons I find that, on this point, the SSAT did have jurisdiction. I will deal separately with the remaining issues which lead the SSAT to find it lacked jurisdiction. For reasons that will appear, the issue raised by the reasons for the SSAT’s decision relate to the powers of the SSAT, not to its jurisdiction. However, I do not consider any technical confusion by the SSAT between its jurisdiction and its powers to entail an error of law affecting its decision in this case.
Was there error on a question of law?
The review application to the SSAT in this case required the SSAT to review the Registrar’s decision on the mother's objection. The objection in turn was to a decision by the Registrar to refuse a change of assessment application by the mother under Part 6A of the Assessment Act.
In matters within its jurisdiction under Part VIIA of the Registration Act, the SSAT has all the powers and discretions of the Registrar, subject to the same limitations as apply to the Registrar’s powers and discretions (s.103T, Registration Act).
In determining an objection under Part VII, the Registrar must review the original decision to come to a decision whether to disallow the objection or to allow it in whole or part (s.87, Registration Act). In reviewing the original decision, the Registrar retains all the powers and discretions that applied in coming to the original decision. Thus, in hearing a review application under Part VIIA in relation to an objection decision, the SSAT has all the powers and discretions of the Registrar in relation to the original decision to which the objection relates.
In this case, the Registrar’s original decision was to refuse a change of assessment application made by the mother under Part 6A of the Assessment Act before 1 January 2007. The SSAT, in deciding the mother's review application, had the same powers the Registrar had at the time of the review in deciding an application under Part 6A, and subject to the same limitations as applied to those powers.
Under s.98S(3B) of the Assessment Act, the Registrar may only make a departure determination under Part 6A in respect of a day in a child support period being a day more than 18 months earlier than the making of a change of assessment application under Part 6A if a court has granted leave under s.112 for the determination to be made. No leave under s.112 has been granted in this case.
The 18 month retrospectivity restriction under s.98S(3B) is counted from the making of the change of assessment application. Thus, if the limitation applies in this case, the limitation in the absence of leave of a court under s.112 is 18 months before 7 September 2006, that is,
7 March 2005.
If the provisions of s.98S(3B) apply in this case, they do not deprive either the SSAT or the Registrar of jurisdiction. They operate as a restriction on a power that may be exercised in a matter in which there is jurisdiction. And if the provisions apply, they do not preclude consideration by the Registrar or the SSAT of whether there should be a departure back to 7 March 2005 simply because the mother seeks departure for a period part of which is earlier than that date.
If any departure is otherwise warranted for any part of the period covered by the mother's application earlier than 7 March 2005, the effect of s.98S(3B), if it applies, is simply to prevent the Registrar granting the application to that extent, absent leave of a court under s.112. And if any departure is warranted for any part of the period back to 7 March 2005, then there should be a departure determination notwithstanding that the mother also seeks departure for periods earlier than 7 March 2005.
Thus, if s.98S(3B) applied in this case, it could not deprive the SSAT of jurisdiction in relation to any part of the mother's review application, although it would limit the exercise of power by it. If it applied, it did not prevent the SSAT considering the mother's review application in relation to the period after 7 March 2005.
But s.98S(3B) does not apply to the mother's change of assessment application.
S.98S(3B) was introduced by Item 11, Schedule 4 of the New Formula Act. Schedule 4 contains an application provision in relation to Item 11, as follows:
“42 Application
The amendments made by items 11, 14, 17, 18 and 19 of this Schedule apply in respect of:
(a) an application made under section 98B of the Assessment Act after the commencement of this Schedule; and
(b) a determination in respect of which parties were notified under section 98M of the Assessment Act after the commencement of this Schedule; and
(c) an application made under section 116 of the Assessment Act after this item commences, even if the application relates to a decision made before the commencement of this Schedule:
(i) to make, or refuse to make, a determination under Part 6A of that Act; or
(ii) to make an administrative assessment under subsection 66(1) of that Act.”
It is Item 42(a) that applies in determining the application of Item 11 and hence s.98S(3B) in this case. That is because in this case, there was no Registrar-initiated change of assessment under Part 6A so s.98M does not apply, and the SSAT was not dealing with an application under s.116. In terms of Item 42(a), s.98S(3B) applies to a Part 6A change of assessment application made on or after
1 January 2007.
The mother's Part 6A change of assessment application having been made before 1 January 2007, s.98S(3B) does not apply to it. Thus, the 18 month retrospectivity restriction does not apply in this case.
The questions of law answered
I am satisfied that the first question of law identified earlier should be answered in the negative, and the alternative or additional question answered in the positive. That is, s.98S(3B) did not apply to the mother's review application and the SSAT did have both the jurisdiction and the power to hear and determine the mother's review application. I am satisfied the SSAT erred in law in finding otherwise.
Decision on appeal and orders
The orders sought by the mother in her Notice of Appeal are that the appeal be upheld and that the Court alter the relevant child support assessments. She did not in terms seek that the decision of the SSAT be set aside. In my view, the comments by Branson J in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [48] are relevant:
48 The orders sought on the appeal are stated as follows:
`1. Appeal allowed.
2. Matter remitted to the Tribunal for determination according to law.
3. Costs.'
The power of the Court to make orders on an appeal from a decision of the Tribunal are set out in s.44(4) and (5) of the AAT Act. The orders that may be made include an order setting aside the decision of the Tribunal. Where an applicant seeks to have a decision of the Tribunal set aside, its notice of appeal should, in my view, say so explicitly. Attention would then be directed, as O 53 r 3(2)(d) requires, to whether the answer for which the applicant contends to a stated question of law supports, in the circumstances of the particular case, an order setting aside the decision of the Tribunal. The necessary link between the answer to a question of law and the order sought on the appeal may be overlooked where, as in this case, the order sought is expressed as `appeal allowed'…
As earlier mentioned, the finding of error on a question of law does not necessarily mean the appeal must succeed. The impact of the error of law on the ultimate decision must be considered in determining whether the appeal should be allowed, and if so, the order that should be made.
The SSAT finding that it lacked jurisdiction to determine the mother's review application clearly resulted in the SSAT not considering the second issue it identified, namely “has (the mother) established reasons for departing from the assessment?”
The effect of the erroneous finding of a lack of jurisdiction has been that the SSAT did not in fact review the Registrar’s decision, and hence has not determined the mother's review application on its merits. In those circumstances, it is appropriate that the decision of the SSAT be set aside.
Having set the decision aside, the mother and the father both seek that the Court hear and determine the matter. There appears, with respect, to have been no serious reflection on what that matter is, that is, whether it will be suggested, as the mother has consistently at every stage of the proceedings up to this point suggested, that the Court should hear an application for a departure order under Division 4 of Part 7 of the Assessment Act, or whether it will be agreed that I am to hear and determine the mother's review application to the SSAT.
It is submitted on behalf of the mother that it would be more expeditious, more efficient and cheaper for the Court to determine the matter, reliance being placed on s.110G of the Registration Act, which is in the following terms:
110G Courts may make findings of fact
(1) If a party to a proceeding before the SSAT appeals to a court under this Subdivision, the court may make findings of fact if:
(a) the findings of fact are not inconsistent with findings of fact made by the SSAT (other than findings made by the SSAT as the result of an error of law); and
(b) it appears to the court that it is convenient for the court to make the findings of fact, having regard to:
(i) the extent (if any) to which it is necessary for facts to be found; and
(ii) the means by which those facts might be established; and
(iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the SSAT relates; and
(iv) the relative expense to the parties of the court, rather than the SSAT, in making the findings of fact; and
(v) the relative delay to the parties of the court, rather than the SSAT, in making the findings of fact; and
(vi) whether any of the parties considers that it is appropriate for the court, rather than the SSAT, to make the findings of fact; and
(vii) such other matters (if any) as the court considers relevant.
(2) For the purposes of making findings of fact under subsection (1), the court may:
(a) have regard to the evidence given in the proceeding before the SSAT; and
(b) receive further evidence.
(3) Subsection (1) does not limit the court’s power under paragraph 110F(2)(b) to make an order remitting the case to be heard and decided again by the SSAT.
This section is almost identical to s.44(7), (8) and (9) of the AAT Act. In Comcare v Etheridge [2006] FCAFC 27, Branson J, with whom Spender and Nicholson JJ agreed, said:
17 Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)-(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.”
The view that seems to prevail in s.44 appeals is that the court will not readily step into the shoes of the decision maker whose decision is under appeal.
In relation to a s.110B appeal, there seems to me to be a clear legislative intention, evinced by the comprehensive amendments to the review procedures that commenced on 1 January 2007, that questions as to the level of child support are to be treated as administrative matters, and are not, subject to the limited exceptions under s.116 of the Assessment Act, to be determined by courts. Consistent with that apparent legislative intention, in my view the court on an appeal under s.110B ought not, as in this case, undertake the task of the SSAT where, because of an error of law, the SSAT has made no endeavour to deal with the review application on its merits.
I do not agree with the submission on behalf of the mother that it will be more expeditious, more efficient and cheaper for the Court to decide the matter. Despite assurances of the parties as to the suggested brevity of any hearing of that application, as already mentioned I am not satisfied that there will not be further difficult issues of law to be determined in clarifying what in fact the Court is to determine, and how. I am not confident there is sufficient time left in the day to complete the matter on that basis, and if not, there would be a lengthy adjournment of several months before I could conclude the matter. And I am not satisfied it would be cheaper for the Court to determine the matter rather than the SSAT.
In my view, the parties have not demonstrated sufficient reason for the Court to substitute itself for the SSAT and to hear the mother's review application. I will therefore remit the matter to the SSAT to hear and determine again.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 13 September 2007
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