McCormack & McCormack & Another (SSAT Appeal) - [2011] FMCAfam 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCCORMACK & MCCORMACK & ANOR (SSAT APPEAL)

[2011] FMCAfam 963

CHILD SUPPORT – SSAT APPEAL – Validity of decision to remove appellant as party to proceedings – denial of procedural fairness – appeal upheld.

Child Support (Registration and Collection) Act 1988, ss.100, 101(5), 102, 110B, 110C, 110D, 110E, 110F, 110G, 110K
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975, ss.35, 44(1), 44(2)
Freedom of Information Act 1982

Byrne & Graham & Ors (SSAT Appeal) [2010] FMCAfam 1116
News Corporation Ltd and Others v National Companies and Securities Commission (1984) 57 ALR 550
Director General of Social Services v Chaney (1980) 31 ALR 571

Appellant:

MR MCCORMACK

First Respondent:

MS MCCORMACK

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

DGC 2395 of 2008

Judgment of:

Hughes FM

Hearing date:

5 May 2011

Date of Last Submission:

5 May 2011

Delivered at:

Melbourne

Delivered on:

9 September 2011

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the first Respondent:

In person

Counsel for the second Respondent:

Mr Boughton

Solicitors for the second Respondent:

Australian Government Solicitor

ORDERS

The appeal from the decision of the Social Security Appeals Tribunal of 18 October 2010 is upheld.
The decision of the Social Security Appeals Tribunal of 18 October 2010 is set aside and the matter remitted for rehearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 2395 of 2008

MR MCCORMACK

Appellant

And

MS MCCORMACK

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeal Tribunal (SSAT) made on 18 October 2010. The appellant did not participate in the SSAT hearing because he was removed as a party to those proceedings two days before the hearing. The appeal is from both the substantive decision and from the decision to remove him as a party to the proceedings.
The appellant is the father of two children for whom he is liable to pay child support pursuant to an administrative assessment. The first respondent is the mother of the children and the parent entitled to be paid child support. Neither of the parents was legally represented in these proceedings. The second respondent is the Child Support Registrar who was represented by the Australian Government Solicitor.
The second respondent argued, firstly, that the decision to remove the appellant as a party to the SSAT proceedings was a procedural decision and not a decision of the sort appealable to this Court and, secondly, that the appellant had no standing to bring the appeal from the substantive SSAT decision as he was not a party to the proceedings at the time the decision was made.

Background

On 26 May 2010 the first respondent (the mother of the children) applied to the SSAT for a review of an objection decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McCormack & McCormack & Another (SSAT Appeal) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCAfam 963
Decision Date: 9 September 2011

CaseChat Overview and Summary

In the Social Security Appeals Tribunal Appeal (SSAT Appeal) case, the parties involved were McCormack & McCormack and another. The primary dispute centered on the interpretation of specific sections within the relevant subdivision of the legislation, specifically sections 110B and 110D. These sections outline the criteria for parties eligible to appeal a decision of the SSAT and who are considered parties to the appeal, respectively. The court was tasked with determining the correct interpretation of these provisions and their implications for the parties' standing to appeal.

The central legal issue was the apparent contradiction between sections 110B and 110D. Section 110B allows a party to a proceeding before the SSAT to appeal any decision of the SSAT, provided they were a party until the decision was made. Conversely, section 110D seems to limit the parties to the appeal to those who were parties at the time of the relevant decision. This discrepancy raised questions about the correct interpretation and application of these sections, especially considering their placement within the same legislative framework and the legislature's likely intent.

The court resolved the contradiction by interpreting section 110D as identifying "other" parties to the appeal, given that the appellant is evident. This interpretation aligns with the broader context of the subdivision, ensuring coherence and consistency in the legislation. By inserting the word "other" into section 110D, the court ensured that the appellant's standing to appeal was preserved, and the apparent conflict between the sections was resolved. The court held that the appeal was valid, and the decision of the SSAT was set aside, with the matter to be reheard.

The final orders of the court were that the appeal from the decision of the Social Security Appeals Tribunal dated 18 October 2010 was upheld. Additionally, the decision of the SSAT from the same date was set aside, and the matter was remitted for rehearing. This outcome ensured that the appellant's right to appeal was recognized and that the matter would be reconsidered in light of the court's interpretation of the relevant legislative provisions.

Orders

Orders of the court

The appeal from the decision of the Social Security Appeals Tribunal of 18 October 2010 is upheld.

The decision of the Social Security Appeals Tribunal of 18 October 2010 is set aside and the matter remitted for rehearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Subdivision B is the relevant subdivision in this case. It contains two provisions which deal with the identification of parties to an appeal but which, on their face, appear contradictory. They are sections 110B and 110D:SECTION 110B APPEALS FROM DECISIONS OF SSAT110B 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. … … …110D PARTIES TO APPEALS 110D the parties to a proceeding under this Subdivision are the people who were the parties to the proceeding before the SSAT when the SSAT made the relevant decision [my emphasis]. Subsection 110B provides standing to the appellant to bring the appeal because he was a party to the proceeding before the SSAT until he was removed on 30 August 2010. The proceeding is the whole action and is much broader in scope than the actual hearing. However, subsection 110D appears to restrict standing to those who were parties at the time of the relevant decision. Each provision, read on its own, would lead to a different outcome in the present case. The reason for the contradiction is not apparent from the legislation. The Explanatory Memorandum to the Bill provides little assistance. It says the following in relation to each provision: 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 only considers matters which raise a question of law.… … …Section 110D provides that the parties to the appeal are the people who were the parties to the proceedings before the SSAT when the SSAT made the relevant decision. This section is expressed in this way to provide clarity in who are the parties to the appeal, because parties may have been joined to, or dismissed from, the SSAT proceedings, at various points.[2][2] Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006, Explanatory Memorandum page 125 It could not have been the intention of the legislature for the provisions to be contradictory, especially when they were enacted together as part of the one suite of amendments to the Act and are contained in the one subdivision, separated by only one subsection. It is also unlikely that the legislature would have intended standing to be denied to someone who had been a party to the SSAT proceedings, who was directly affected by the decision and who wanted to appeal the decision. In my view, the subdivision as a whole gains coherence and the apparent internal conflict is resolved by notionally inserting the word “other” into the opening words of section 110D. This means that section 110D is directed at identifying the other parties to the appeal, given the appellant is obvious and various other parties may have been joined or removed during the life of the SSAT proceedings.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.