Paisley and Baker and Anor

[2016] FCCA 1016

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAISLEY & BAKER & ANOR [2016] FCCA 1016

Catchwords:
CHILD SUPPORT – Interlocutory application to proceed out of time with Appeal from a decision of the Administrative Appeals Tribunal (AAT) in a child support first review – application to proceed out of time is dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.44AAA, 44(2A)

Child Support (Assessment) Act 1989, ss.116(1)(b), 117B, 136, 159, 159A

Child Support (Registration and Collection) Act 1988, s.110

Cases cited:
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley & Anor [2015] FamCAFC 76
Larson & Martell & Anor [2013] FCCA 1815

Somer v Child Support Registrar & Anor [2016] FCCA 49

Applicant: MR PAISLEY

First Respondent: MS BAKER

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 937 of 2015

Judgment of: Judge Cassidy

Hearing date: 29 April 2016

Date of Last Submission: 29 April 2016

Delivered at: Brisbane

Delivered on: 6 May 2016

REPRESENTATION

The Applicant appeared in person

The First Respondent appeared in person, by telephone

Solicitors for the Second Respondent: Mr C Bishop of Department of Human Services

ORDERS

1. That the father’s oral application for leave to proceed out of time in relation to the Notice of Appeal filed on 2 October 2015 be dismissed.

2. That the Application in a Case filed by the father on 19 February 2016 be dismissed.

3. That the Notice of Appeal filed by the father on 2 October 2015 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Paisley & Baker & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 937 of 2015

MR PAISLEY

Applicant

And

MS BAKER

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter commenced with a Notice of Appeal (Child Support) filed by the father on 2 October 2015. The appeal was in relation to a decision made by S. Trotter that was dated 3 February 2014. Therefore, the appeal was approximately 18 months out of time. In order for the applicant to proceed with the appeal, the applicant needed to apply for an extension of time in which to file the appeal. Directions were made for the applicant to file an Application in a Case and Affidavit in relation to this issue.

2. On 19 February 2016 the applicant sought, what appears to be a Departure Order, pursuant to s.117 of the Child Support (Assessment) Act 1989 (the Assessment Act). The applicant did not at any stage file an Application in a Case for leave to proceed out of time, nor an Affidavit supporting that application. The Child Support Registrar (the Registrar) and the mother did not oppose allowing the applicant to make an oral application for leave to proceed out of time. I allowed the father to make that oral application. The difficulty for the father in his case was, even though he filed voluminous material, he had not addressed the issues that were necessary for me to consider in determining the leave to procced out of time.

Background

1. The Registrar has adequately summarised the background to this matter in his submissions filed on 15 April 2016, from paragraphs 4 to 13 as follows:

   “4. The Applicant and First Respondent are the parents of X (the child), born (omitted) 2007.

   5. The child support assessment was registered on 9 February 2010.

   6. On 13 March 2013 the First Respondent applied to the Registrar for a departure from the administrative assessment under Part VIA of the Assessment Act.

   7. On 26 April 2013 a Senior Case Officer (SCO), being a delegate of the Registrar, considered the application and found a ground of departure established on the basis that the costs of maintaining the child were significantly affected because the child was being educated in the manner expected by the parents. The SCO decided to increase the Applicant's child support liability by $2,120 per annum for the period 1 September 2012 to 31 December 2012, $2,650 per annum for the period 1 January 2013 to 31 December 2013 and that for the period 30 April 2012 to 5 October 2013 the administrative assessment of child support was to be calculated on the basis that the Applicant did not have any relevant dependent children.[SSAT Reasons for Decisions at [5]]

   8. The Applicant lodged an objection and on 2 September 2013 the decision was affirmed. [SSAT Reasons for Decision at [6]]

   9. The Applicant sought review from the SSAT and on 3 February 2014 the decision was affirmed.

   10. On 2 October 2015 the Applicant filed the appeal which appears to seek orders to depart from the administrative decision dated 3 February 2014, being the SSAT decision. In addition the Applicant seeks the Registrar to assess his contributions to the child's private school in accordance with a mediation agreement dated 24 October 2012 and the First Respondent to repay the Applicant the money he is entitled to on account of the reassessment.

   11. On 9 February 2016 when this matter came before this Court, the Applicant confirmed he sought to appeal the SSAT decision and Orders were made requiring the Applicant to file an Application in a Case to proceed with his appeal out of time.

   12. On 19 February 2016 the Applicant filed the application seeking what appears to be departure orders under the Assessment Act. No mention is made of the appeal or the need for time to be extended.

   13. On 29 February 2016 the Registrar filed his Response seeking for the application to be dismissed.”

The Tribunal Amalgamation

1. I note that as of 1 July 2015 the SSAT amalgamated with the Administrative Appeals Tribunal (AAT) and therefore the first review of a child support decision moved from the SSAT to the AAT. I note that consistent with the previous appeal regime under s.110B of the Child Support (Registration and Collection) Act 1988 (the Collection Act), an appeal against the decision of the AAT is limited to an appeal “on a question of law” (s.44AAA of the Administrative Appeals Tribunal Act 1975 (the AAT Act)).

The Application in a Case

1. The Application in a Case was filed by the applicant on 19 February 2016 seeks eight orders, whereby the applicant says:

   “Pursuant to section 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of the child support payable by Mr Paisley to Ms Baker for the child X as follows: … ”

2. The applicant further sets out various time periods and the quantum for the departure.

3. I accept the submissions made on behalf of the Registrar that the Court does not have jurisdiction to hear and determine a departure order pursuant to s.117 of the Assessment Act.

4. Section 116 of the Assessment Act allows for an application for departure to be brought before a court only in circumstances where a parent is a party to a pending application and the court is satisfied that it is in the interest of the parents for the departure to be heard.

5. I am satisfied on the authority in Larson & Martell & Anor [2013] FCCA 1815 at [27] that an appeal from an SSAT decision did not fall within the meaning of application as used in subsection 116(1)(b) of the Assessment Act. The analysis of the presiding Judge in that matter was to allow such an application to be run in parallel with an appeal from a decision of the SSAT would undermine the integrity of the administrative scheme of review. I consider that that analysis applies equally to the AAT- the body that now is the decision maker that replaced the SSAT. Therefore, in my view, to the extent that the applicant seeks a departure order under the Assessment Act, the application must be dismissed for want of jurisdiction.

Application for extension of time

1. I allowed the father to make an oral application to extend time in which to lodge his appeal. I note that at the mention of the matter on 9 February 2016 the applicant was informed that the appeal was out of time and to proceed he required the Court to grant. As such, the applicant was ordered to file an Application in a Case seeking to proceed out of time. I accept the submissions made on behalf of the Registrar that the appeal is approximately 18 months out of time, given that the decision was posted to the parties in or around February 2014.

2. Section 44(2A) of the AAT Act provides that time may be extended by this Court and the relevant Court rules apply. Therefore, the applicant requires this Court to grant him leave to proceed out of time.

3. In Somer v Child Support Registrar & Anor [2016] FCCA 49 Judge Jarrett summarised the relevant factors in paragraphs 8 and 9, as follows:

   “[8] The factors to be considered in determining whether to extend time include:

   a) the reasons for Ms Somer’s failure to file the appeal within the time provided by the Rules;

   b) the history and nature of the litigation;

   c) the conduct of the parties;

   d) the consequences for the parties of the grant, or the refusal to grant, the extension of time;

   e) the desirability of finality in litigation and the relevance of costs orders; and

   f) the prospects of the application in respect of which the extension of time is sought.

   [9] Ultimately, however, “The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479 at [2].  “This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant”: Gallo v Dawson (above).”

Reason for failure to file the appeal within time

1. The applicant provides no evidence in his Affidavit of 19 February 2016 in relation to why he failed to file the appeal in time.

History and nature of the litigation

1. There is nothing in the history and nature of the litigation that is determinative either way in relation to the issue of leave to proceed out of time.

The conduct of the parties

1. I accept the Registrars submissions that there is nothing in the conduct of the parties that weighs in favour of or against the grant of leave.

The consequences for the parties if time is or is not extended

1. The Registrar submitted that the greater impact in relation to extension of time is upon the first respondent and that this should be taken into account. The applicant has waited some 18 months to appeal the decision of the SSAT and it affected his child support liability for the period from 30 April 2012 to 31 December 2013. This period has long since passed and the Registrar submits that the first respondent was entitled to rely on the relevant assessment and indeed the funds that have been collected and paid to her. These have no doubt been used for the purposes that they were intended to be used for.

The desirability for finality and relevance of cost orders

1. I accept that there is desirability for litigation between parties to be finalised. That is no doubt one of the reasons why the appeal has to be filed within 28 days of receiving it. The finality enables the person entitled to the payment to be at liberty to spend it on the relevant expenses that were being sought to be paid. The Registrar submits that the substantive appeal has no reasonable prospect of success, and I will deal with that further on in the judgment. However, I take into account that there is a desire for the proceedings between the parties to be finalised and that is a relevant factor in coming to the decision on whether or not to grant leave to extend the time to appeal.

Prospects of the substantive appeal

1. The Registrar submits that in this matter the grounds for appeal set out in the applicant’s Notice of Appeal filed on 2 October 2015 do not raise “a question of law”.

2. An appeal is brought under s.44AAA of the AAT Act and is limited to an appeal “on a question of law”. I accept, as was pointed out in Child Support Registrar & Crowley & Anor [2015] FamCAFC 76 that appeals from the tribunal lie only on a question of law and because of the confined nature of the appeals from the tribunal to the Court there is a requirement that the grounds of appeal to the Court be drawn with particular precision.

3. The Full Court in Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 provided a useful summary of the principles that emerge from the authorities in relation to child support appeals and they are helpfully summarised in the submissions of the Registrar filed on 15 April 2016 at paragraph 44:

   “…

   -    The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).

   -    The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).

   -    A wrong finding of fact is not an error of law (Al-Miahi).

   -    A finding of fact based on reasoning that is “demonstrably unsound” or on an “illogical course” or a “faulty process” of reasoning is not an error of law (Al-Miahi).

   -    Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang).

   -    Section 103X(3)(b) of the Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf).”

4. Dealing with these grounds in the appeal, I accept the submission that s.136 of the Assessment Act is not relevant because there is no registered agreement as between the mother and the father in the present case. Therefor that ground has no prospect of success.

5. I also accept that s.159 and s.159A of the Assessment Act are not relevant provisions because these are sections that create offences for providing false or misleading statements. This is not the appropriate forum where those allegations can be tried and determined. The grounds that refer to s.159 and s.159A of the Assessment Act must therefore fail.

6. In reading Mr Totter’s decision it is abundantly clear that the applicant takes issue with a document provided to the SSAT in relation to the child’s enrolment at (omitted) College, which the father claims was turned sideways to eliminate the first respondent’s signature. As I indicated the document relates to the child’s enrolment at (omitted) College and it this issue and the associated fees that are the crux of the applicant’s complaints.

7. I note that the AAT canvased comprehensively the issues in relation to that document, and documents relating to (omitted) College generally. The AAT indeed stood the matter down to obtain documents from (omitted) College of its own motion, as opposed to the parties producing the documents. I accept that the findings of fact made by the SSAT cannot be challenged in this Court in an appeal on a question of law. Therefore those grounds have no prospect of success.

8. An additional appeal point seems to be the manner in which the hearing was conducted. The applicant asserts that he was treated like a criminal and not afforded an opportunity to present his case in the manner that he expected. To the extent that this can be interpreted as raising a question whether the applicant was denied procedural fairness, I accept that that may raise a question of law. In my view, on the face of the SSAT decision, there was an opportunity provided to the applicant in relation to relevant issues, being whether a ground for departure was established, and if so, whether it was just and equitable and otherwise proper to make a particular determination. I consider this ground is unlikely to succeed.

9. The applicant’s remaining complaints relate to the original decision maker and objections officer and their respective decisions. Those decisions have really been overtaken by the decision of Mr Trotter, the AAT member.

10. I accept the submissions of the Registrar that the appeal has no reasonable prospects of success.

Conclusion

1. With respect to the departure order, I am satisfied that I have no jurisdiction to make that order and therefore I should dismiss that application.

2. With respect with the leave to proceed out of time, I am satisfied for the reasons set out in the judgment that the applicant has failed to provide adequate explanation for his delay, the prejudice was in favour of the first respondent in circumstances where the appeal in my view has no reasonable prospect of success and the need for finality in decision making should take precedence.

3. I will therefore dismiss the father’s application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  6 May 2016