Myers and Myers and Anor (SSAT Appeal)
[2013] FCCA 1088
•17 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MYERS & MYERS & ANOR (SSAT APPEAL) | [2013] FCCA 1088 |
| Catchwords: CHILD SUPPORT – Appeal from decision of SSAT – question of law – whether appellant was denied procedural fairness – whether decision maker inferred a fact without evidence to support the inference. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.88, 103(2)(a), 103A, 103E, 110B, 110K |
| Byrne & Graham & Another (SSAT Appeal) [2010] FMCAfam 1116 McCormack & McCormack & Another (SSAT Appeal) [2011] FMCAfam 963 Simon v SSAT [2011] FMCA 857 Manchester & Manchester & Ors(SSAT Appeal) [2011] FMCAfam 1215 |
| Applicant: | MR MYERS |
| First Respondent: | MS MYERS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | PAC 2036 of 2009 |
| Judgment of: | Judge Halligan |
| Hearing date: | 1 August 2013 |
| Date of Last Submission: | 1 August 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 17 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Myers In Person |
| Solicitors for the 1st Respondents: | No Appearance |
| Solicitors for the 2nd Respondents: | Ms Schuster |
ORDERS
The father's Amended Notice of Appeal filed on 19 April 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Myers & Myers & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2036 of 2009
| MR MYERS |
Applicant
And
| MS MYERS |
| First Respondent And CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Myers (the father) on a question of law against “the decisions of the Social Security Appeals Tribunal” (the SSAT), made on 19 November 2012. The respondents to the appeal are Ms Myers (the mother) and the Child Support Registrar (the Registrar).
The mother did not take part in the proceedings, despite being served with the father's Notice of Appeal, Amended Notice of Appeal, and affidavit relied on in support of the appeal. The appeal is opposed by the Registrar.
Background
The SSAT concurrently heard and determined two separate applications for review by the father, both relating to his challenges to decisions of the Registrar in relation to requests he made for credit for non-Agency payments. The reasons for the decisions on the father's review applications were dealt with in a single set of reasons, a copy of which is attached to the father's Amended Notice of Appeal.
Before the father's review applications were heard and determined by the SSAT, two requests by the father to postpone the hearing before the SSAT were refused, and a decision was made to proceed with the hearing without oral submissions from the father. The reasons for these decisions were given in a different set of reasons, also attached to the father's Amended Notice of Appeal. I will refer to the reasons for refusing the father's postponement requests and for deciding that the hearing would proceed before the SSAT without hearing oral submission from the father as the first reasons, and the reasons for the SSAT’s decisions on the determination of the father's review applications as the second reasons.
Both reasons are under the hand of Ms T. In the first reasons,
Ms T described herself as both “Presiding Member of the Tribunal” and “Delegate of the Principal Member of the Tribunal”, while in the second reasons she described herself as “Presiding Member”.
The facts
The following facts are taken from the SSAT’s reasons for decisions, from documents provided to the Court by the SSAT Principal Member under s.110K of the Child Support (Registration and Collection) Act 1988 (the Registration Act), from the affidavit of the father relied on in his case, and from exhibits tendered in the father's case.
The mother and the father are the parents of X (born 1999) and Y (born 1996). The Registrar made child support assessments for the children at relevant times and registered the liability for collection. In relation to the decisions relevant to this appeal, the father was the liable parent.
On 23 January 2012, the father asked the Registrar to credit $159.95 against his child support liability because he spent that amount buying a coat for X. On 30 January 2012, the father asked the Registrar to credit an amount of $11.95 against his child support liability because he spent that amount to purchase wart cream for X. These two applications appear to have been dealt with together, the Registrar’s delegate refusing both applications on 9 May 2012. On 24 May 2012, the father objected to this decision.
On 31 January 2012, the father asked the Registrar to credit the amount of $119.95 against his child support liability because he spent this amount purchasing sunglasses for X. On 25 May 2012, the Registrar’s delegate refused the father's application. On 30 May 2012, the father objected to this decision.
Both objections by the father were disallowed by the Registrar’s delegate on 16 July 2012.
On 26 July 2012 and on 15 August 2012, the father applied to the SSAT for review of the decisions disallowing his objections.
On 24 October 2012, the SSAT Registry notified the parties that the father's review applications were listed for telephone hearing on
13 November 2012.
Following telephone contact between each of the parents and the SSAT Registry on 26 October 2012 during which the SSAT Registry became aware that the parties were in the Family Court of Australia on
13 November 2012, the SSAT Deputy Registrar wrote to the father on 26 October 2012 advising him his review applications would be heard by telephone at 11.00 am on 19 November 2012. That letter advised the father the SSAT would call him on a mobile number stated in the letter.
On 26 October 2012, the father wrote to the SSAT requesting a postponement of the review hearing until early 2013. The matters adverted to by the father in that letter as reasons for his request for a postponement were-
a)A medical appointment for an Asperger’s assessment for X on 8 November 2012;
b)A Children’s Court appearance concerning X on 9 November 2012;
c)A further medical appointment for X following a “serious epileptic seizure” on 12 November, 2012;
d)A Family Court appearance on 13 November 2012;
e)The need to finalise submissions for another appeal in this Court on 10 December 2012; and
f)He was yet to receive a Family Court transcript he had requested and which he wished to rely on in the SSAT hearing.
The father suggested the scheduling of the matter was on “short notice without affording me the opportunity of preparing and lodging proper submissions”, and sought an adjournment to early in the New Year as he contended the matter was not urgent and delay would not prejudice the mother.
The first reasons record that-
“On 30 October 2012, as the single member of the Tribunal, I considered his request and decided not to do so.” (First reasons, [10])
The father was advised on this decision by letter from the SSAT Registry dated 9 November 2012, which he received on 14 November 2012.
On 11 November 2012, the SSAT Registry received a further letter from the father enquiring about the outcome of his request for an adjournment. This letter, in which the father said he was unavailable for the hearing on 19 November 2012 without explaining why, had clearly crossed with the advice from the Registry that his request for an adjournment had been refused. The SSAT Registry took no action on this letter in light of the refusal of the adjournment application notified to the father by the letter of 9 November 2012.
The father wrote again to the SSAT on 16 November 2012, the last business day before the scheduled hearing before the SSAT, referring to the letter from the SSAT he received on 14 November 2012, and stating he would be “out of the country from (omitted) November 2012 to
(omitted) December 2012 as per attached flight details”. He faxed this letter to the SSAT at (omitted) on (omitted) November 2012. He again asked for a postponement to 2013.
The flight details the father provided to the SSAT on 16 November 2012 confirmed he was travelling from Australia to (omitted) via (omitted), departing Sydney at (omitted) November 2012, and arriving in (omitted) at (omitted) local time (omitted) November 2012. I accept the father's evidence that assuming on-time arrival, his flight would land at (omitted) at (omitted) November 2012 Sydney time.
This was the first time the father advised the SSAT that he would be out of the country on the day scheduled for the hearing. He suggested in the hearing of his appeal before me that he did not disclose this earlier as he wished to preserve his privacy. But the SSAT or its Principal Member can only make decisions on the basis of the information a party is willing to provide. A party does not control the scheduling of matters before the SSAT, and has no right to a postponement. If a party seeks a postponement of a hearing, the SSAT and the Principal Member can reasonably expect that the party seeking the postponement has disclosed all relevant information in support of the postponement when seeking it, particularly if it is information indicating the person seeking the postponement would be precluded from participating in the hearing if it were not postponed.
In any event, the privacy concerns the father expressed are spurious in my view. He submitted that the overseas trip was to be a holiday with his son. He said that the trip was “up in the air” until he appeared before the Family Court of Australia on 16 November 2012 and obtained an order permitting him to take his son overseas. The mother was the other party in those proceedings. She was also a party to the proceedings before the SSAT. The requirements of procedural fairness in the Family Court proceedings, the very requirements he says were not met in the SSAT proceedings, dictated that he inform the mother of his proposed overseas travel with the child before that Court could consider permitting the child to travel. There was no good reason demonstrated by the father why he did not disclose the proposed overseas travel in his postponement applications made on 26 October 2012 and on 11 November 2012.
After the father's letter was received by the SSAT Registry, an officer of the SSAT rang the father at the behest of the Presiding Member to explore options for the father to participate in the hearing on
19 November 2012 by phone from (omitted). The father maintained that he would be overseas and not contactable, even when advised that the SSAT conducts hearings by phone with parties overseas. The father did not accept the suggestion he could find a telephone in his hotel to use for a telephone attendance on 19 November 2012. When the officer of the SSAT suggested to the father he was refusing to make himself available for the hearing rather than being unable to participate in the hearing, the father stated he had to leave to pick up his son and terminated the phone call.
The first reasons record that-
“On 16 November, I declined to grant the request. I decided the hearing would go ahead on 19 November. However, I decided it would take place later on the day to facilitate (the father's) attendance.” (First reasons, [13])
The SSAT Deputy Registrar emailed notice of the decision refusing his second postponement request to the father at 4.51 pm on 16 November 2012. The email advised the father that the commencement time had been changed to 11.30 am Sydney time, which was said to be 7.30 pm (or 19:30) (omitted) time. The hearing was thus to commence 40 minutes after the father's flight was due to land in (omitted). The email also advised the father that it was open to him “to make a request to the Presiding Member that the hearing be conducted at a later time that day to allow you to find a quiet place to provide oral submissions”. The email went on to advise the father that the SSAT Deputy Registrar had left a voicemail message asking him to contact the SSAT and had sent him an SMS message confirming that the hearing would proceed on
19 November at 11:30 am and asking him to contact the SSAT if he would like the hearing to start at a later time on 19 November 2012.
The father objected strongly to notice of this decision being emailed to him. In his applications to the SSAT, he had indicated that he did not agree to this mode of notice, and stipulated postal notification. He said email notification was in breach of his written application and “directions concerning no email communication and breaching the confidentiality of the proceedings and breaching my privacy”. In his submission, he put that the only valid method of giving him notice of SSAT decisions was by ordinary mail to his home address, and sought to suggest the email notification was invalid.
However, in view of the eleventh hour nature of the father's second adjournment application and the limited options for bringing the decision to refuse his adjournment application to the father's attention at that hour on a Friday, when the hearing before the SSAT was to commence the following Monday, I see no grounds for criticism of the way the SSAT Registry notified the father of this decision. If the SSAT Registry had notified the father of its decision by ordinary mail as the father suggested it should have, the father would not have been aware that the hearing was in fact proceeding on 19 November 2013. In any event, I am not satisfied that the father's complaint as to the method of communication used by the SSAT Registry on this occasion raises a question of law, and hence cannot be or form part of any ground of appeal.
On Saturday 17 November 2012, the father sent another letter to the SSAT about his request to postpone the hearing. He put in that letter that he would be due to arrive in (omitted) at 11.00 am 19 November 2012 Sydney time after having spent about 24 hours travelling, as a result of which he would be physically and mentally exhausted. He submitted that the matter would be determined on the credibility of the parties, he objected to the CSA having sent irrelevant documents to the SSAT and to the mother having used some of those documents in the Family Court proceedings, and stated that if the SSAT heard his applications on 19 November 2012, he would appeal any decision he considered unfavourable to him on the basis of being denied an opportunity to make oral submission and refute evidence put before the SSAT. With this letter were seven pages of submissions on the substantive matters raised by his review applications, together with various annexures.
At the time listed for hearing the review applications on
19 November 2012, the presiding member attempted to telephone the father a number of times over a period of 75 minutes, without success. The first reasons record that-
“Acting as the delegate of the Principal Member of the Tribunal, I decided to proceed to hear the matter without his oral submission.” (First reasons, [15])
The first reasons record that –
“17. Under the Act, the Tribunal may adjourn a matter from time to time but may also refuse to do so in specific circumstances. One of those circumstances is when it ‘is satisfied that to grant an adjournment would be inconsistent with the pursuit of the objective laid down by section 88’ (section 103R). Section 88 states the Tribunal ‘must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick’ (section 88).
18. I acted as the Tribunal (constituted as a single member) when I made the decision not to adjourn these matters at (the father's) request.” (First reasons, [17] and [18])
The first reasons then record that-
19. Under the Act, the Principal Member has the power to decide to hear a matter without oral submissions from a party (section 103E). This power arises if:
· a party is to make oral submissions by telephone; and
· on the day fixed for the hearing, the presiding member of the Tribunal has been unable to contact the party after taking reasonable steps to do so.
20. I made the decision to proceed with the hearing on the day listed for hearing without oral submissions from (the father) as the delegate of the Principal Member. I had regard to the view of the Principal Member that she must use the powers provided to her under the Act to assist the Tribunal to pursue the objectives laid down by section 88.” (First reasons, [19] and [20])
The first reasons record that the evidence taken into account in making the decisions dealt with by those reasons were the written requests for postponement made by the father and “written and oral reports from the Deputy Registrar of the Tribunal to me of conversations with the parties”.
Reasons for refusal of father's first postponement request
The first reasons state that the reasons advanced by the father for his first adjournment request was “because he has a number of other matters to attend to around the time of the hearing including court hearings on 9 and 12 November 2012 and medical appointments on
8 and 12 November 2012”. The first reasons record that the father in his first adjournment request did not say he was unavailable on the
19 November 2012, when the matter was listed before the SSAT, because of those appointments, but rather the number of matters he was dealing with made things difficult for him, and that this affected his capacity to care for his son.
Ms T inferred that the father was available on 19 November 2012 to attend the hearing. She noted that in almost all matters in the SSAT’s child support jurisdiction, at least one of the parties has caring responsibilities for a child, and many are also dealing with parenting or property matters in court, but ordinarily make the time to prepare their SSAT matter as best they can. She noted that the informality of the SSAT mitigates any difficulties for parties in presenting their cases.
Ms T noted that the father made his review applications knowing they would require his attendance at a hearing, and that the mother too was involved in the court matters to which the father referred in his adjournment request, and had the care of one of the parties’ children, as did the father.
Ms T therefore concluded that none of the matters to which the father had referred in his adjournment request prevented him presenting his case to the SSAT on the listed day.
The first reasons record that the father also advised that he wished to make written submissions to the SSAT and to provide a court transcript he believed was relevant to his applications. Ms T recorded her view was this was not a reason to delay the hearing, as the father could tell the SSAT about the content of the transcript at the hearing and make oral submissions, at which point the SSAT could adjourn the matter or defer making a decision if it found that the transcript was relevant or that it would assist the SSAT to have written submissions.
The first reasons also recorded Ms T’s finding that the father had reasonable notice of the hearing, and did not have “short notice” as suggested in his postponement request.
I pause to observe something not explicitly adverted to in the first reasons. The matters before the SSAT concerned the total sum of $291.85, which the father said he had spent on X and which he wanted credited against his child support liability for the child. This was not a dispute that would make thousands of dollars difference to the parties’ financial positions. It was not a dispute that involved complex issues of fact. It did not involve complex legal issues.
In discharging its obligations under s.88 of the Registration Act, the SSAT, and the Principal Member in discharging her functions in relation to applications to the SSAT, in my view has an obligation to adopt procedures that are proportional and appropriate to the matters in issue. The fact parties may be involved in protracted and bitter dispute, and wish to pursue every possible point of contention to the maximum extent possible, does not mean the SSAT must bow to their demands. On the contrary, the SSAT and the Principal Member have a duty in my view to ensure that parties involved in bitter and deeply entrenched conflict, such as exists between the parents in this case, do not inappropriately monopolise the time and resources of the SSAT that must be made fairly available to all the parties to all proceedings before it.
No matter how important a party may think a dispute over $291.85 is, and no matter what matters of principal they seek to have vindicated in such a dispute, it remains a dispute over a few hundred dollars, and in the grand scheme of things, cannot logically be treated by the SSAT with the same commitment of time and resources as it would a case involving complex factual and legal issues, with an outcome that involves many thousands of dollars more or less in child support. What was in issue in this matter also indicates the relative simplicity and narrow scope of the hearing for which the parties had to prepare.
The first reasons noted that the purchases the father wished to have credit for were made in January 2012, the factual dispute between the parties involved their states of mind at that time, and there was no suggestion either made records of their requisite state of mind. The father implicitly acknowledged this in submitting that the matter would fail to be determined on a matter of credit. The first reasons record that both would have to rely on memory, which would become less reliable the longer the matter was delayed. Therefore, Ms T refused the first adjournment application.
Reason for refusal of father's second postponement request
The first reasons record that the reason the father gave for his second adjournment request was that he would be travelling with X to (country omitted) and would be unavailable. The first reasons note that no mention of this was made in the first adjournment request, and from this an inference was drawn that the father made his travel plans after receiving advice that the hearing of his reviews had been scheduled for 19 November 2012.
Ms T in the first reasons noted that despite commencing the proceedings, the father “chose to make holiday plans that made it difficult to attend the hearing”, he did not tell the SSAT at the earliest opportunity of those plans, he did not cooperate with the Deputy Registrar to facilitate attendance at the hearing while on holiday, and if the father did not attend the hearing, it was largely because he made himself unavailable to do so. Ms T found in those circumstances that the injustice caused by delay outweighed the risk of injustice to the father from his non-attendance, noting that the mother wished the matter to proceed as listed. She therefore refused the father's second adjournment request.
Reasons for decision to proceed with hearing without oral submission from father
The first reasons record that Ms T attempted to ring the father on his “usual number” at the time scheduled for the hearing and on three further occasions over the ensuing 75 minutes. The father did not answer.
Ms T recorded in the first reasons that she formed the view that she had made reasonable attempts to contact the father and taking into account-
a)the principles enunciated in section 88 of the Registration Act to “pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”; and
b)the father's lengthy written submissions that addressed the issues relevant to the decisions under review, which Ms T considered reduced the risk of injustice or unfairness to the father by proceeding without hearing his oral submissions,
she decided, as delegate of the Principal Member, that the hearing should proceed without hearing the father's oral submissions.
The applicable law
The right of appeal arises under s.110B of the Registration Act, which provides-
“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.”
The right of appeal is strictly limited to a question of law. The right of appeal does not permit of any review of the merits of the matters the subject of the SSAT’s decisions.
A decision in relation to an application for review in the exercise of a power vested in the Principal Member of the SSAT is not a decision of the SSAT for the purposes of the right of appeal under s.110B (Byrne & Graham & Another (SSAT Appeal), [2010] FMCAfam 1116, McCormack & McCormack & Another (SSAT Appeal), [2011] FMCAfam 963, Simon v SSAT, [2011] FMCA 857, Manchester & Manchester & Ors (SSAT Appeal), [2011] FMCAfam 1215). However, a decision of the SSAT determining a review application may be set aside if a decision of the Principal Member in relation to the review application was infected by error on a question of law, and that decision had infected the ultimate dispositive decision of the SSAT (McCormack & McCormack & Another (SSAT Appeal), Ibid).
It is relevant to this appeal that in McCormack it was found that an interlocutory decision to remove the appellant as a party to the SSAT proceedings was not lawfully made, that as a result of the removal of the appellant as a party the SSAT did not allow him to attend and be heard at the hearing of the review application, and that in consequence the appellant was denied procedural fairness, that is, that he was denied an opportunity to be heard based on an interlocutory decision that was infected with error on a question of law.
The decisions not to reschedule the SSAT hearing were decisions of the Principal Member. While the SSAT has power to adjourn a hearing (s.103R), I am satisfied that that power does not arise until a hearing has commenced. The power to schedule the hearing of a review application vests in the Principal Member (ss.103(2)(a) and 103A(1)). The power to schedule the hearing includes the power to reschedule a hearing that has not commenced.
Similarly, the decision to proceed with the hearing before the SSAT without hearing the father's oral submissions was made in the exercise of a power vested in the Principal Member, not the SSAT (s.103E(2) and (3)). In this case, the decision having been made to conduct a telephone hearing, the relevant source of the power was s.103E(2).
The grounds of appeal
The appellant identified one ground of appeal in his First Amended Notice of Appeal, replacing nine grounds of appeal stated in his initial Notice of Appeal. The ground of appeal the father relied on was as follows-
“1. That the Appellant had sought an adjournment of the hearing to allow the Appellant to give oral evidence at a Hearing and in denial of natural justice and contrary to all the rules of procedural fairness, the SSAT proceeded to hear the matters in the absence of the Appellant and without affording the Appellant the opportunity of giving oral evidence.”
During his submissions, it appeared the father was seeking to impugn findings of fact relevant to the decisions to refuse his adjournment applications. There being no objection on behalf of the Registrar to my doing so, I granted the father leave to amend his Amended Notice of Appeal to add a second ground of appeal to the effect that the decision maker who refused each of his adjournment applications erred on a question of law by drawing inferences of fact without evidence to support them, namely-
a)in relation to the decision on the father's first postponement application, an inference that the father was available to attend the hearing on 19 November 2012 (first Reasons, [25]); and
b)in relation to the father's second postponement application, an inference that the father made his travel plans following advice from the SSAT Registry of the hearing date of 19 November 2012 (first Reasons, [33]).
Was the father denied the right to be heard?
The father's submissions sought to challenge the correctness of the decisions not to postpone the hearing and to proceed with the hearing without hearing from him. His submissions proceeded on the basis that his postponement requests should have been granted, and that failure to grant them resulted in his right to be heard on his review applications being denied to him. He also suggested that the decision to proceed in his absence was wrong and denied him the right to be heard.
While a denial of procedural fairness, including denial of a right to be heard, raises a question of law, it is not the case that the SSAT could not proceed to hear the father's review applications if he was not present. The right to be heard is not absolute. What is required is that a person be given a reasonable opportunity to be heard. The Registration Act itself clearly contemplates that a hearing may proceed without hearing from a party, and lays down a procedure that must be followed before the SSAT may do so (see s.103E).
The father must show that one or other of the decisions to refuse to postpone the hearing before the SSAT involved error on a question of law, or that the decision to proceed with the hearing in his absence involved error on a question of law, and that in consequence, he was denied procedural fairness in the substantive hearing before the SSAT.
The first decision to refuse a postponement
The father challenged the inference that he was available on
19 November 2012, drawn in connection with the first decision to refuse a postponement of the hearing, contending it was made without evidence to support it.
Given that in his first request for a postponement the father put forward a variety of reasons why the hearing should be postponed from
19 November 2012, including commitments he had on various dates not including 19 November 2012, I am satisfied there was ample evidence from which this inference could be drawn. Given the commitments the father did specify, it was eminently reasonable to infer that he was available on dates he did not say he was unavailable. And at no time before his letter dated 11 November 2012, that is, after the first decision to refuse a postponement, did he suggest he was unavailable to attend the SSAT hearing on 19 November 2012.
In the first reasons, Ms T stated that she decided to refuse the father's first request for a postponement “as the single member of the Tribunal” (first Reasons, [10]). In doing so, she incorrectly identified the capacity in which she had power to make the decision. However, she was both the single member appointed to constitute the SSAT to hear the father's review applications, and the delegate of the Principal Member, as she indicated in the way she described herself at the end of the first reasons – “Presiding Member of the Tribunal Delegate of the Principal Member of the Tribunal”. Whether the power to make a decision in relation to the father's review applications vested in the SSAT or in the Principal Member, Ms T had the power to make the decision, and I am satisfied the statement in the first reasons that she refused the father's first postponement request in her capacity as the sole member of the SSAT for the father's review applications cannot alone vitiate her decision.
The second decision to refuse a postponement
The father challenged the inference that the father made his travel plans after becoming aware that the hearing had been rescheduled to
19 November 2012, drawn in connection with the second decision to refuse a postponement, as being made with no evidence to support it. The father adduced evidence before me that satisfies me that the flight bookings for the overseas trip were in fact made on 12 October 2012, which is before notice of the first hearing date was given to the parties. The father submitted that before drawing the inference, the decision maker should have contacted him and asked him when he made the bookings.
I am not satisfied the decision maker was under any such obligation. As mentioned, the father had already made one postponement application, and while he mentioned a variety of reasons why he wished to have the hearing postponed, he at no stage mentioned he would not be available, or that he would be travelling overseas. The father is a (occupation omitted). He is articulate and fully capable of marshalling his facts and presenting arguments in support of his position. He deliberately chose to withhold information relevant to his postponement applications until 16 November 2012, the last business day before the hearing, and then complains before this court that decisions made in ignorance of that information are wrong.
The first time the father suggested he was unavailable for the hearing was in his letter dated 11 November 2012, but in that letter he simply made the bald assertion he was unavailable. He did not say why. This displayed disrespect to the SSAT and to the other parties to the proceedings before it, and betrayed an attitude in the father, exemplified in the presentation of his case before me, that he was entitled to a postponement if he asked for one, and it was impertinent of the officers of the SSAT to challenge him about the reasons why he wanted the postponement. He in fact used quite intemperate language in relation to the second decision to refuse a postponement that impugned the bone fides of the decision maker and suggested that the decision maker was motivated by malice towards him. When I refused to hear submissions couched in such terms, unless he amended his grounds of appeal to allege bias or malice towards him, he apologised and withdrew the allegation, suggesting he was upset because of the circumstances of the overseas holiday and the position in which the decision to refuse the postponement left him.
The father said the overseas trip was taken with support of his son’s psychologist and the Independent Children's Lawyer in the parenting proceedings to help the boy deal with traumatic experiences he had been through that resulted in the child coming into the father's care and facing criminal proceedings before the Children’s Court at the instigation of the child’s mother. He put evidence before me to show that the child has ASD (autism spectrum disorder), ADHD, ODD and epilepsy. He put that this was a traumatised, special needs child, who he was taking on an overseas holiday, that he and the child would be arriving in (omitted) at around the time of the SSAT hearing after having travelled for about 24 hours, and that it was totally impractical for him to be able to attend to his son’s needs after such a long and tiring trip, and find an appropriate place to attend the SSAT hearing by phone while at the same time attending to his son’s needs.
The father chose not to divulge any of this information when asking for the SSAT hearing to be postponed. At no time in the hearing before me did he provide an adequate explanation for not doing so.
Given that the first time the father suggested he was unavailable to attend a hearing on 19 November 2012 was in his letter of
11 November, 2012, and given that neither the father's letter of
16 November 2012 nor the flight details attached indicated when he had made the flight bookings, I am satisfied that it was open to the decision maker to draw the inference that he made the flight bookings after being advised that the hearing would take place on
19 November 2012. If the father chose for his own reasons to keep relevant information secret from the SSAT, he can hardly later complain that a decision should have been made consistent with that secret information.
Decision to proceed with the hearing without the father's participation
The father asserted that if the SSAT had attempted to ring him on his mobile phone, as stated in the first reasons, he would have had a record of missed calls from the SSAT, but there were none. He gave no evidence to this effect. The assertion was made as part of his submissions.
The Principal Member’s power to authorise the SSAT to proceed to hear a matter without hearing a party’s oral submissions may only be exercised, where the parties are to attend the hearing by phone, if the presiding member of the SSAT “has been unable to contact the party … after taking reasonable steps to do so” (s.103E(2)(b)). The first reasons record that Ms T, who was the presiding member, “telephoned (the father) on his usual number at the time of the listed hearing and on three occasions in the following 75 minutes. He did not answer his telephone.” I have no reason to doubt the veracity of what is recorded in the first reasons under Ms T’s hand, in both her capacities as presiding member and as delegate of the Principal Member, and I am not satisfied the exercise of this power was attended by any error on a question of law.
Adequacy of notice of the hearing
In support of his contention he had been denied the right to be heard, the father submitted in effect that the hearing had been scheduled with undue haste, referring to the requirement under s.103A(2) and (3) of the Registration Act that he was to be given written notice of the day, time and place fixed for the hearing a reasonable time before the day fixed for the hearing.
The father was first advised of the hearing date of 19 November 2012 by phone on by 26 October 2012, as indicated in his letter of that date making his first postponement request. A letter was sent to him on the same day advising him that the hearing was scheduled on 19 November 2012. Thus, the father knew of the hearing date more than three weeks before the hearing date, and would have received written notice of the date in the ordinary course of post at least three weeks before the hearing date.
The father did not explain why he contended this notice was not in accordance with s.103A, and considering the amount in issue in the SSAT proceedings and the relatively narrow ambit of the facts relevant to whether or not he should be given credit for the payments he made, I am satisfied this notice was reasonable. In any event, I do not understand that this raises a question of law, as whether or not notice of the hearing date was reasonable in my view is a question of fact.
Decision
As I have already observed, the right to be heard is adequately accommodated if a party is given a reasonable opportunity to be heard. It is not the case that a party can prevent a hearing proceeding by simply not attending the hearing.
The father was given a reasonable opportunity to be heard. He could have changed his travel plans. It was not definite that the trip would in fact proceed until permission was granted by the Family Court of Australia on 16 November 2012 for the child to leave the country. If that permission had not been granted on that date, the trip would have been either cancelled altogether, or postponed.
Even if the father had disclosed all the relevant information about the overseas trip when he first sought a postponement on 26 October 2012, the Principal Member was not obliged to accede to the father's request. If she had refused that request, it could not give rise to a successful appeal against the decision of the SSAT determining the father's review applications unless it was infected with error on a question of law, which in turn infected the ultimate decision with error on a question of law.
The father’s appeal was an attempt to have this court review the merits of the decisions to refuse to postpone the SSAT hearing, on the basis of information he chose to withhold from the SSAT until one business day before the hearing, despite having had that information for the previous seven weeks. As already stated, an appeal under s.110B is not a merits review.
As the father has failed to demonstrate any error on a question of law infecting any of the five relevant decisions, his appeal must be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Date: 17 September 2013
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