Lilley and CSR and Ors (SSAT Appeal)
[2010] FMCAfam 378
•12 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LILLEY & CSR & ORS (SSAT APPEAL) | [2010] FMCAfam 378 |
| CHILD SUPPORT – Application for an extension of time to lodge an appeal – SSAT – procedural fairness – operation of s.117(2) of the Child Support (Assessment) Act 1989 – Need to provide particulars. CHILD SUPPORT – Costs – Applicant wholly unsuccessful – costs ordered against applicant. |
| Child Support (Assessment) Act 1989, s.117 Commonwealth of Australia Constitution Act 1900 Family Law Act 1975, s.117 Judiciary Act 1903 (Cth) |
| Appellant: | MR LILLEY |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | SOCIAL SECURITY APPEALS TRIBUNAL |
| Third Respondent: | MS LOGAN |
| File Number: | MLC 4974 of 2009 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 March 2010 |
| Date of Last Submission: | 12 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 March 2010 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant appearing in person. |
| Counsel for the First Respondent: | Ms Berry |
| Solicitors for the First Respondent: | Child Support Registrar |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent. |
| Counsel for the Third Respondent: | Ms Carter of Counsel |
| Solicitors for the Third Respondent: | Taussig Cherrie & Associates |
ORDERS
The appellant file and serve a copy of the transcript of the SSAT within 28 days, and direct the SSAT to provide a copy of the audio recording to the court.
The appellant file and serve an outline of argument, of not more than four pages, at least 28 days before the hearing.
The respondent file and serve an outline of argument, of not more than four pages, at least 14 days before the hearing.
The Child Support Agency be given leave to withdraw.
The appellant contribute $500 towards the costs of the Child Support Agency, and allow 12 months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Lilley & CSR & Ors (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4974 of 2009
| MR LILLEY |
Appellant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| SOCIAL SECURITIES APPEAL TRIBUNAL |
Second Respondent
| MS LOGAN |
Third Respondent
REASONS FOR JUDGMENT
(As Revised from Transcript)
In this matter there is an application for an extension of time to lodge a child support appeal. The reasons for the delay are explained and there appears to be no appreciable prejudice to the respondents. It therefore appears to me that the grant of an extension is subject to the question of whether or not there is a serious issue to be determined.
The appellant seeks to be able to place the transcript and tape of the hearing before me, and has come today expecting procedural orders rather than a final determination of the case and circumstances. I will set the matter down for hearing, both the appeal and the extension of time at the same time, rather than having yet another hearing date.
The notice of appeal relevantly seeks:
INTERIM (URGENT INTERLOCUTORY)
1. That pursuant to section 110C (1)(a)(ii) of the Child Support (Registration and Collection) Act 1988 and in accordance with Rules 25A.06 and 3.05 of the Federal Magistrates Court Rules 2001, the Applicant be granted leave to file and serve this Notice of Appeal ‘out of time’ based on the grounds outlined in the attached document titled ‘In the Name of a Child’ being (Annexure ‘A’) to the Affidavit of [the appellant] dated 16 February 2010. I refer the court specifically to section 2.1 (p9) of that document; also Appendix 8 to that document. I also respectfully request that the matter be heard and served ‘out of time’ in the interests of public justice.
2. That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the operation of all child support assessments payable by [the appellant] to [the third respondent] for [D] be stayed pending determination of the application made by [the appellant] on Friday 16th February 2010 and any subsequent proceedings as a result of a transference of proceedings at (3) below. Whilst the assessments are stayed and from 16th February 2010, [the appellant] shall continue to may payments of child support to [the third respondent] of the assessed amount to the extent that it does not exceed $400.00 per month (equivalent to pre-existing stay).
3. That the Court give urgent consideration to the serious issues posed by an obvious ‘conflict of interest’ raised in section 5.1 (p54) of the document ‘In the Name of a Child’ being (Annexure ‘A’ to the accompanying Affidavit). As the questions of law raised in the document pertain directly to the alleged negligent actions of my ultimate employer (The Commonwealth Department of Human Services), I request that the Court make appropriate orders as to:
a. secure my privacy;
b. prevent persecution in my employment;
c. prevent unfair dismissal, demotion, etc;
d. deal appropriately with the problems outlined concerning any remittal of the matter; and
e. deal appropriately with the potential problems relating to service of documents.
Note: Given the circumstances and time constraints, I am personally pleased for the Court to consider the interlocutory orders based on the written submission and without oral hearing, assuming that this is an option and the Court deems that to be appropriate.
FINAL
1. That pursuant to section 110F(2)(a) of the Child Support (Registration and Collection) Act 1988 the decision of the SSAT made on the 3rd December 2009 to affirm the decision under review, be set aside and declared as being of no legal effect based on the grounds outlined in the attached Affidavit and in the interests of justice.
2. That pursuant to section 110F(2)(a) of the Child Support (Assessment) Act 1989 the court make a departure order if one of the legislated grounds for departure exists and it would be just, equitable and otherwise proper to do so.
3. That when and if deemed necessary and pursuant to the provisions contained in subsection 39(4) of the Federal Magistrates Act 1999 and regulation 8.02 of the Federal Magistrates Court Rules 2001, the appeal proceedings be transferred, either in part or in full, and heard by a Full Court of the Family Court based on the grounds detailed in the attached Affidavit.
4. That pursuant to the provisions contained in Part 12.03 and 12.03A of the Federal Magistrates Court Rules 2001 and based on the grounds in the attached Affidavit:
a. the Court refer the Applicant to the Registrar for referral to a lawyer on the Federal Magistrates Court ‘pro bono panel’ for legal assistance and representation in all matters in relation to these and any subsequent proceedings; and
b. the Court make specific direction that the Registrar appoint such a lawyer taking into account the complex and specialised nature of the proceedings.
5. That pursuant to Regulation 9 of the Federal Magistrates Court Regulations 2000, any ‘orders as to costs’ for this and any subsequent proceeding, be waived on the grounds that it would further compound existing financial hardship.
6. Any further orders as the Court sees fit.
With respect to the application itself, there are a number of grounds set out which I need to deal with to put it in proper order. Firstly, one of the grounds of appeal is an allegation of a denial of access to justice. This is supported by lengthy papers provided by the appellant. I cannot see that there is any basis in the material for showing that it amounts to a ground of appeal from the particular decision of the SSAT. Rather, it goes to general socio-political issues relating to access to the courts and the legal system. In these circumstances, it does not appear to me that it can properly be a ground of appeal in this matter and it is appropriate that it be struck out.
Ground two is an allegation that there was a failure to accord the appellant procedural fairness. This is prima facie a proper ground but needs to be particularised.
Ground three relates to the operation of s.117(2) of the Child Support (Assessment) Act, and whether it was properly applied by the SSAT. Again, this appears to indicate a proper ground but needs to be particularised.
Ground four alleges negligence on the part of the Child Support Agency and appears to foreshadow a claim of maladministration. It is not a claim that this court has jurisdiction to deal with in its original jurisdiction. It does not appear to me that it could be said to be sufficiently connected to an appeal from the SSAT in a child support matter to give rise to associated or accrued jurisdiction. In the circumstances, the appropriate course with respect to this claim is to strike it out and to allow the appellant to bring it in the appropriate court if he chooses to do so.
I therefore order that grounds one and four of the grounds of appeal be struck out and that the appellant provide particulars of grounds two and three within 28 days.
With respect to the interim orders sought, interim order number one I will reserve for the hearing.
Interim order number two seeks a stay. In this matter, the grounds for appeal as described in the documents and articulated today do not appear to me to show a basis upon which I could conclude that the balance of convenience requires a stay of the assessment at this time. The SSAT decision clearly goes through what would normally be considered the grounds for departure, and attempts to consider the financial circumstances of both parties in a substantive way before coming to a conclusion. I am not persuaded at this time that a stay is warranted and I, therefore, decline to make order number two.
With respect to interim order number three, the appellant raises issues as to whether or not, because he is employed by another government department, there is a conflict of interest with the Child Support Agency dealing with his case. It does not appear to me that this is a matter that is within the ambit of an appeal from the SSAT. Whether or not he seeks injunctive relief elsewhere in this regard is a matter for him, but it is not an order that this court ought to make. I add that it appears to me that there is no substance in this particular part of his claim, it being based solely upon the relatedness of the departments and not upon the basis that particular officers have access to his records in both departments or some form of the direct interconnection between his employment and his case at the Child Support Agency.
I note that there are cases at the Child Support Agency that actually involve officers of the Child Support Agency and, to the extent that those cases arise, the Agency has systems in place to carefully manage the privacy of the people concerned, and to ensure that those handling their child support case are not their co-workers in the areas in which they work in the Agency. Similarly, it would be impossible for the Australian Tax Office (‘ATO’) not to deal with the tax returns of ATO or other government employees and even judges hearing tax appeals. This difficulty is a fact of life and, provided that it is properly managed by the Child Support Agency with respect to individual cases, does not appear to me to give rise to a cause of action.
With respect to the final orders sought, orders one and two appear to deal with the questions on the appeal. With respect to order three, the appellant seeks to have the matter transferred to be heard at first instance by the Full Court of the Family Court. It is a particularly unusual course to transfer a matter to the Full Court. It would ordinarily be done by the process of reserving a point of law to the Full Court to rule upon so that the trial or hearing could continue. This case is already at the appellate level before this court, and it appears to me that it serves no real purpose in reserving it to the Full Court. It is more appropriate that I hear and determine it, and if my decision is challenged that can be the subject of an appeal to the Full Court. The Full Court will have the benefit of there being a hearing and determination before hearing the further appeal, which is likely to clarify issues and may result in the parties concluding that there is no issue from which an appeal is warranted. I, therefore, strike out order three of the final orders sought.
Order four of the final orders sought is a request that the court refer the matter to the Registrar for the purpose of appointing a pro bono lawyer. I have heard some submissions about the case, and read considerable material. I am not persuaded on the materials to date that the appellant has an issue of significance for argument, nor that he is so incapable of putting his issues to the court that he necessarily requires a lawyer, although I certainly accept that a lawyer putting any submissions is often able to put them more clearly and succinctly to the court than a self-represented litigant. However, the pro bono panel is a small panel of lawyers who agree to give their time to assist persons in need with cases that appear to have genuine issues of significance and substance. I am not persuaded that this case falls within that ambit and I am not persuaded that it would be appropriate to cause the Registrar to make such a referral.
Order five deals with costs, which is appropriately dealt with at the end of the matter.
I also give some brief reasons with respect to whether or not I should direct that the Attorneys-General of the Commonwealth and the States be notified, as the appellant says that the interpretation of s.117 is a constitutional issue. It appears to me that s.117 of itself does not give rise to a constitutional issue in the sense contemplated by the Judiciary Act. It certainly may give rise to many issues of interpretation, given the difficult factual scenarios that are regularly before this court and the Family Court. It has been the subject of many reported decisions to date as to its proper application and interpretation. These are not, however, constitutional issues that ought properly be the subject of a notice to the Attorneys-General of the States and the Commonwealth.
Constitutional issues are questions of whether or not, as a result of the operation of the Constitution of the Commonwealth, the legislation is invalid or its operation otherwise affected by the Constitution. Nothing in this case seems to me to demonstrate that that is a real issue. In these circumstances, it is not appropriate for me to make orders under the Judiciary Act or the rules of court to require that the Attorneys-General be notified. If it is intended to argue that the section of the Act that is referred to is constitutionally invalid, then the appellant will need to file an amended notice of appeal clearly setting out the argument in that regard with particulars so that further directions can be made.
Costs
This is an application for costs by the Child Support Registrar with respect to the proceedings today. Costs are governed by s.117 of the Family Law Act. The proceedings are an appeal from a decision of SSAT. The Registrar rarely attends and participates beyond an attendance to seek leave to withdraw, usually on the basis that the facts and circumstances of an individual case should be left to the appellant and the third respondent to litigate without the spectre of the Child Support Registrar appearing to support one or the other of them.
On rare occasions the Registrar does appear to make submissions, usually on a question of law alone, not the particular facts of the case, where the outcome of the case may have a significant impact on a large number of other cases being administered by the Agency; or a particularly significant impact on the circumstances of the case. In those circumstances, it is not usual that the Agency would not seek costs because they are appearing to ventilate an issue of public importance.
In this case the Agency appeared only because orders were sought against the Agency pursuant to claims of negligence on the part of the Agency causing harm, with claims for damages yet to be quantified.
I have previously made rulings that such a claim is inappropriate to join to an appeal from the SSAT and, that to the extent that such extraneous claims are brought, they should be struck out. Had those claims not been added to the appeal, the Child Support Agency would have attended and simply sought leave to withdraw from the proceedings. The claims, it seems to me, were misconceived as was the proposal that they be joined to the appeal.
The CSA is an agency funded by the taxpayer, although its budget, like most government agencies, is stretched and, no doubt, Commonwealth moneys could be used for better purposes than having lawyers preparing today for the Child Support Agency.
The appellant, on the other hand, is on a low income, said to be around $40,000 per annum. He has child support liabilities; he has another child he cares for, and he has a wife. His life is in emotional turmoil, and he is presently consumed by this dispute and the difficulties that it presents to him and his family as a result of a long and difficult family history with his first child, and with dealing with the Child Support Agency.
Nobody is legally aided.
The appellant was wholly unsuccessful with respect to matters dealing with the Child Support Agency beyond those that the Agency would seek leave to withdraw from and abide the orders of the court.
Litigation in child support seems to me to be in a category that I should have careful regard to before making costs orders. In a civil jurisdiction, if it were a claim against a bank or another citizen, the costs would ordinarily follow the event for such a claim. However, no such presumption arises under s.117 of the Family Law Act. I also note that this litigation is in the context of a group of Australians, being those involved with child support, who often confront quite significant emotional turmoil and difficulty with their involvement with the Child Support Agency. Indeed, it seems to be well-recognised now that the agency itself must confront a lot of citizens, whom they describe as clients, with these difficulties, and that is one of the significant operational difficulties for those charged with running the Child Support Agency. Many of these difficulties do not present themselves to other government departments dealing with other groups in other contexts.
The appellant says that there are matters of public interest. It does not appear to me that his case about public interest proceedings is strong in this context in this matter.
When I look at the matter as a whole, it appears to me that it is appropriate that the agency have some contribution to their costs for the nature of the claim that has been brought. The Agency seeks $3500 on the basis of a preparation fee for an interim hearing and appearance fee. However, the Agency has not compiled any material to be filed in the court which would ordinarily be contemplated by stage two of the fee scale in the rules. The preparation for today, frankly, must have been relatively brief and little more than a briefing from the Agency and reading the material: the lawyer that appeared did not come armed with any authorities on actions for maladministration, nor even with some of the relevant legislation.
In the circumstances, it seems to me that a contribution towards the Agency’s costs, bearing in mind that an officer of the Agency would have attended anyway to seek leave not to participate further, is called for. In this case, I propose to order that the appellant contribute $500 towards the costs of the Child Support Agency, and allow 12 months to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Katherine Sudholz
Date: 13 April 2010
5
0
4