Pryor and Pearce and Anor (SSAT Appeal)

[2015] FCCA 1240

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRYOR & PEARCE & ANOR (SSAT APPEAL) [2015] FCCA 1240

Catchwords:
CHILD SUPPORT – Appeal – appeal against decision of Social Security Appeals Tribunal – where no question of law raised – no grounds for appeal – where orders sought not within jurisdiction – where appeal lacking in merit – appeal incompetent.

EVIDENCE – Relevance – evidence that is not relevant is not admissible – where affidavits contained irrelevant material – whether affidavits should be considered as submissions.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F

Evidence Act 1995 (Cth), s.56
Family Law Act 1975 (Cth), s.44
Federal Circuit Court Rules 2001, Division 2, Part 2, Sch.1

Cases cited:
Child Support Registrar & Crowley [2015] FamCAFC 76
Federal Commissioner of Taxation v Crown Insurance Services Ltd [2012] FCAFC 153
Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCA 1060

Appellant: MR PRYOR

First Respondent: MS PEARCE

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 1484 of 2013

Judgment of: Judge Scarlett

Hearing date: 12 May 2015

Date of Last Submission: 12 May 2015

Delivered at: Sydney

Delivered on: 15 May 2015

REPRESENTATION

Appellant: In person

First Respondent: No appearance

Solicitor for the Second Respondent: Mr Dean

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The Appeal filed on 15 September 2014 is dismissed as incompetent.

2. The decision of the Social Security Appeals Tribunal made on 27 August 2014 and despatched on 5 September 2014 is affirmed.

3. The Order made on 10 February 2015 that the collection of payments of child support and spousal maintenance be stayed is discharged.

4. The Appellant has leave to file and serve within 21 days a written submission to show cause why an Order should not be made that he pay the costs of the Child Support Registrar in the sum of $6,581.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1484 of 2013

MR PRYOR

Appellant

And

MS PEARCE

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Appeal

1. This is an Appeal against a decision of the Social Security Appeals Tribunal (SSAT) made on 27^th August 2014 and despatched on 5^th September 2014. The Tribunal affirmed the decision of Child Support Registrar to register the decision of the District Court of (country omitted), (country omitted), that the Appellant should pay spousal maintenance in the sum of (omitted) ($73.20) per month to the First Respondent, his former wife.

2. It should be said from the outset that the Appeal is misconceived and entirely lacking in merit. Consequently, it will be dismissed.

Background

1. The Appellant and the First Respondent were married in (country omitted) on (omitted) 1987.

2. They were divorced by a decree of the Federal Magistrates Court at Parramatta, which became absolute on 15^th February 2002.

3. The Australian divorce was confirmed by the Court in (country omitted) and the First Respondent filed an application for spousal maintenance on 5^th July 2002. On 28^th September 2006 the (country omitted) Court made an order for the Appellant to pay spousal maintenance to the First Respondent.  

4. On 10^th January 2014 the Child Support Registrar registered the (country omitted) Court’s order with effect from 7^th November 2013.

5. The Appellant objected to that decision. On 5^th July 2014 his objection was disallowed. The Appellant thereupon applied to the SSAT for a review of the objection decision.

6. The Appellant attended the SSAT hearing on 27^th August 2014 personally. The First Respondent attended by telephone. There was no appearance by or on behalf of the Child Support Registrar.

7. After considering the Appellant’s submissions, the Tribunal found that the order of 28^th September 2006 was a registrable maintenance liability which was properly registered on 10^th January 2014. Accordingly, the Tribunal affirmed the decision under review.

8. The Appellant then appealed to this Court against the SSAT decision.

The Notice of Appeal

1. The Appellant filed his Notice of Appeal on 15^th September 2014, supported by an affidavit sworn that same date to which was annexed a copy of the SSAT decision and various items of correspondence.

2. In the Notice of Appeal the Appellant seeks the following orders:

   1.  Dismiss the registration.

   2.  Return the intercepted amount of $3,293.68[1].

   3. Paid all (country omitted) Court’s costs for 4 court’s cases, including the recent case under (indecipherable) Art 118k.c., all costs fixed at $40,000.00.

   [1] Referring to an income tax refund

   4.  My rights for a compensation for bully.

3. Under the heading “Ground of Appeal” appeared the words “SSAT Decision dated 27 August 2014”.   

4. In the body of his affidavit, the Appellant set out, under the heading “Question of Law”, a two page statement in which he claimed that:

   a)Decisions were made by fraud, in that the Government lied in a letter of 4^th July 2013;

   b)The court in (country omitted) had no jurisdiction to make an order for spousal maintenance; and

   c)He had been the subject of financial and procedural bullying (presumably by the Child Support Registrar).

5. At the hearing, when asked by the Bench to confirm that the orders referred to in his Notice of Appeal were the orders he was seeking, the Appellant said that his affidavit of 26^th March 2015 contained an order as follows:

   I seek a compensation for bullying …of amount of $200,000 now…I sought a financial order of $334,385.66 with the Court’s Case 1484/2013…I seek additionally [ORDER SOUGHT] with this Affidavit to oblige the second Respondent, the Registrar by Court’s Order to obtain a (country omitted) Court Order says that the Australian Government uphold its decision that Mr Pryor’s obligation for child support for (country omitted) ended with  surplus of amount of AU$3220.48 as informed the Australian Government Department of Human Services with the Account Details dated 19 April 2014-16 May 2014.

Evidence and Submissions

1. As well as his affidavits of 15^th September 2014 and 26^th March 2015, the Appellant has filed another nine affidavits upon which he seeks to rely. One affidavit of 27^th November 2014 was filed on 2^nd December 2014 in support of his Application in a Case seeking a stay of enforcement of payments of child support and spousal maintenance.

2. The other eight affidavits were filed on:

   a)9^th October 2014;

   b)22^nd January 2015;

   c)12^th February 2015;

   d)6^th  March 2015;

   e)9^th  March 2015;

   f)2^nd  April 2015;

   g)29^th April 2015; and

   h)4^th  May 2015.

3. Mr Dean, who appeared for the Child Support Registrar, objected to all of those affidavits on the basis that they are irrelevant and “largely incomprehensible”, referring the Court to the provisions of s.56 of the Evidence Act 1995 (Cth).

4. Section 56 provides:

   (1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

   (2)Evidence that is not relevant in the proceeding is not admissible.

5. The affidavits are replete with annexures containing copies of correspondence and allegations about all manner of matters that are not relevant to the task that this Court has to determine, which is to ascertain whether there has been an error of law by the Tribunal that warrants the setting aside of the Tribunal decision.

6. The best that can be said of these affidavits are that they should be considered as submissions.

7. Mr Dean, for the Child Support Registrar, in his written submission, submitted that if the affidavits are read as submissions, it may be discerned from them that the Appellant has the following complaints or grievances:

   a. the SSAT decision was affected by fraud because, in a letter dated 4 July 2013, the Department of Human Services stated, incorrectly, that it had not received an application to enforce spousal maintenance.

   b. the registration of the (country omitted) court order occurred outside the particular time limit mandated by the Act and the (country omitted) Civil Code.

   c.  the registration was somehow contrary to ‘Australian Order (omitted), which the Child Support Registrar takes to refer to order made in the Federal Magistrates Court on 14 January 2002.

   d.  the registration was in respect of a non-resident of Australia.

   e.  the SSAT misconstrued the operation of (country omitted) Article 118.

   f.  a terminating event for the overseas maintenance liability had occurred because either the payee or the payer or both have ceased to be residents of Australia.

8. However, even if those were to be construed as the Appellants’ grounds of appeal, they fail to articulate any pure question of law for determination by the Court.

9. The Appellant made some oral submissions. An interpreter in the (country omitted) language was provided for his assistance but he preferred to make his submissions in English without the benefit of the interpreter.

10. The Appellant’s submissions appeared to be that:

    a)The first Respondent, his former wife, obtained her maintenance order in (country omitted) by fraud;

    b)If a party is not represented in court that is a matter of law, as he was not represented in the Court in (country omitted);

    c)There was no basis for the Registrar’s decision to register the (country omitted) Court's Order;

    d)The First Respondent’s application for spousal maintenance to the Court in (country omitted) was out of time, because her application was made more than 12 months after the decree nisi became absolute and was therefore caught by s. 44(3) of the Family Law Act 1975 (Cth);

    e)There was a fraud committed by the Child Support Registrar; and

    f)The Child Support Registrar should be punished financially for failing to observe a stay order made by this Court on 10^th February 2015.

11. No question of law arises out of any of those submissions. The proposition that because a divorce order made by an Australian Court exercising jurisdiction under the Family Law Act 1975 has been registered in a Court in (country omitted) the provisions of s.44(3) of that Act applies to an application for spousal maintenance made in that Court is certainly novel, but entirely incorrect. Even if it were the case, it is clear from the evidence that the decree became absolute on 15^th February 2002 and the application for maintenance was filed on 5^th July 2002. Even if s.44(3) did apply, the application was within time.

12. The Child Support Registrar submits that the Appeal is incompetent and ought to be dismissed, relying on Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2]; Child Support Registrar & Crowley[3] and Federal Commissioner of Taxation v Crown Insurance Services Ltd[4].

    [2] [2012] FCA 1060

    [3] [2015] FamCAFC 76

    [4] [2012] FCAFC 153; (2012) 207 FCR 247

CONCLUSIONS

1. The Federal Circuit Court is given jurisdiction to hear appeals from decisions of the SSAT by s.110B of the Child Support (Registration and Collection) Act 1989 (Cth), which provides:

   110BA party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act on a question of law, from a decision of the SSAT on that review under section 103S.

2. The powers of a Court hearing an appeal are set out in s. 110F of the Act, which provides at subsections (1) and (2):

   110F(1)    The court must hear and determine an appeal under this Subdivision and may make such order as it thinks appropriate by reason of its decision.

   (2)Without limiting subsection (1), the orders that may be made by the court on an appeal include:

   (a)an order affirming or setting aside the decision of the SSAT; or

   (b)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the SSAT in accordance with the directions of the court.

3. The Orders sought in the Notice of Appeal appear to be outside the jurisdiction of the Court, with the possible exception of the proposed Order 1, seeking the dismissal of the registration of the (country omitted) Court order. It is patently obvious that the Court has no power to make an order for costs in respect of proceedings in the Courts in (country omitted) or to make an order for compensation for “bullying” in the sum of $200,000.00.

4. The Notice of Appeal contains no grounds of appeal whatsoever. Even taking a generous view of the Appellant’s affidavits, not one of the purported grounds contains a pure question of law. In any event, it is clear from the authorities that grounds of appeal must be stated with clarity and precision. It is not up to the Court to search through the Appellant’s material in an attempt to glean some sort of a question of law which may constitute a ground of appeal under s.110B of the Act.

5. In Khan v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[5], Perram J held at [3]:

   …there have been a number of decisions in this Court which have affirmed that the articulation in the notice of appeal of a question of law is not merely a procedural nicety but, in fact, a jurisdictional requirement.

   [5] supra

6. In Federal Commissioner of Taxation v Crown Insurance Services Ltd[6],  Lander and Foster JJ held at [20]-[21]:

   20 It is often not easy to discern whether an issue raised is a question of law, a mixed question of law and fact, or a question of fact. The difference can be subtle and the distinction obscure: Grealy v Federal Commissioner of Taxation (1989) 24 FCR 405 at 407.

   21Notwithstanding the difficulty in determining whether the question raised on appeal is a question of law, the Court must address the issue because its very jurisdiction depends upon the appeal being on a question of law.

   [6] supra

7. In the recent decision of Child Support Registrar & Crowley[7] the Full Court of the Family Court (Finn, Strickland and Murphy JJ), held at [24] and [26]:

   24.A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal; to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.

   [7] supra

   …

   26.The grounds of appeal from the decision of the Tribunal with which the primary Judge was concerned here exhibit a failure to appreciate the confined nature of the appeal to the FCCA from a decision of the Tribunal. Many of the grounds assert errors of fact not law and such errors of law as were asserted were not pleaded with clarity and precision. Indeed, a proper analysis of the grounds by his Honour could have permitted the appeal against the decision of the Tribunal to have been dismissed peremptorily on that basis.

8. The fact is that the Appellant has not pleaded any grounds of appeal and has not argued any question of law at all. The proceedings are incompetent and should be dismissed on that basis.

9. It follows that the Stay Order made on 10^th February 2015 should be discharged.

10. The Child Support Registrar seeks a contribution to the Registrar’s costs fixed in the amount of $6,581.00, in accordance with Division 2 of Part 2 of Schedule 1 to the Federal Circuit Court Rules 2001. There is some force to the submission that an order for costs should be made against the Appellant, who has brought an entirely meritless appeal. However, procedural fairness requires that he should be given the opportunity to make a submission to show cause why an order for costs in that amount should not be made. I propose to allow 21 days for such a submission to be made.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  15 May 2015