Redmond and Strolz and Anor (SSAT Appeal)
[2015] FCCA 989
•22 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDMOND & STROLZ & ANOR (SSAT APPEAL) | [2015] FCCA 989 |
| Catchwords: CHILD SUPPORT – Application dismissed – vexatious. |
| Legislation: Child Support (Assessment) Act 1989, ss.151, 151A Child Support (Registration and Collection) Act 1998, s.111CA |
| Attorney-General v Wentworth (1988) 14 NSWLR 481 Lindberg & Scott [2009] FamCA 465 Marsden & Winch [2013] FamCAFC 177 Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 |
| Applicant: | MR REDMOND |
| First Respondent: | MS STROLZ |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 4493 of 2011 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 27 March 2015 |
| Date of Last Submission: | 27 March 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 22 April 2015 |
REPRESENTATION
| The Appellant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Second Respondent: | Mr C Bishop of the Department of Human Services |
ORDERS
That the Notice of Appeal (Child Support) filed on 9 December 2014 be dismissed as vexatious pursuant to section 111CA of the Child Support (Registration and Collection) Act 1988.
IT IS NOTED that publication of this judgment under the pseudonym Redmond & Strolz & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 4493 of 2011
| MR REDMOND |
Applicant
And
| MS STROLZ |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Child Support Registrar to dismiss as vexatious pursuant to section 111CA of the Child Support (Registration and Collection) Act 1998 a Notice of Appeal (Child Support) filed on 9 December 2014 by Mr Redmond.
Background
Mr Redmond filed a Notice of Appeal on 9 December 2014 that related to a decision of the Social Security Appeals Tribunal (“SSAT”) that confirmed the decision of the Child Support Objections Officer to disallow the applicant’s objection to the Registrar’s decision to end the administrative assessment of child support. The effect of the Registrar’s decision is that Mr Redmond does not have to pay child support from 30 June 2014.
The applicant, Mr Redmond, and the first respondent, Ms Strolz, are parents of the child X who was born on (omitted) 2008. Up until 30 June 2014 X was subject to an administrative assessment of child support. The first respondent elected to end the administrative assessment of child support on 30 June 2014. On 16 July 2014 the Registrar accepted that election. The applicant objected to the decision and on 16 September 2014 his objection was disallowed. He then sought a review from the SSAT and on 24 November 2014 the SSAT affirmed the decision now under review. On 9 December 2014 the applicant filed this appeal.
The Appeal
The grounds for the appeal were set out in Part C at paragraph 5 of the Notice of Appeal (Child Support). The ground is stated as:
“1. The member provided inadequate reasons for the decision.
2. The member did not afford the applicant procedural fairness.”
The legal framework for the original decision
Section 150 and 150A of the Child Support (Assessment) Act 1989 govern a party’s election to end the administrative assessment of child support.
“151 Election by carer entitled to child support to end administrative assessment
(1) A carer entitled to child support for a child may, by notice given to the Registrar, elect that the liability of a liable parent to pay or provide child support for the child to the carer entitled to child support is to end from a specified day.
(2) The notice must be given in the manner specified by the Registrar.
Note: Section 150A provides for the Registrar to specify the manner in which a notice may be given.
(4) If:
(a) a carer makes an election under subsection (1) in respect of a child; and
(b) the carer is entitled to be paid, or is a claimant for, family tax benefit for the child, the Part A rate of which is higher than the base rate for the carer under clause 4 of Sch 1 to the Family Assistance Act;
the election has no effect unless and until the Secretary approves the election under section 151A.
(5) If:
(a) a person makes an election under subsection (1) in respect of a child; and
(b) the application for administrative assessment under which the child support is payable was made, in accordance with paragraph 29B(1)(b), by an overseas authority of a reciprocating jurisdiction on behalf of the carer entitled to child support;
the election has no effect unless and until the overseas authority approves the election.
151A Procedure where person making election is receiving more than the base rate of family tax benefit Part A
(1) As soon as practicable after a carer referred to in subsection 151(4) makes an election, the Registrar must inform:
(a) the Secretary; or
(b) if the Secretary has delegated his or her powers under this section to:
(i) the Chief Executive Centrelink; or
(ii) an officer or employee of the Human Services Department;
the Chief Executive Centrelink.
(2) The Secretary must, by applying clause 10 of Sch 1 to the Family Assistance Act, decide whether the carer has taken reasonable action to obtain maintenance for the child if it were assumed that:
(a) the election were to take effect; and
(b) if the carer is a claimant for family tax benefit for the child—the carer were entitled to be paid the benefit.
(3) The Secretary is taken to approve the election if the Secretary decides that the carer has taken reasonable action to obtain maintenance for the child.
(4) The Secretary is taken not to approve the election if the Secretary decides that the carer has not taken reasonable action to obtain maintenance for the child.
(5) As soon as practicable after the Secretary makes a decision under this section, the Secretary must tell the Registrar about the decision.
(6) As soon as practicable after the Secretary decides not to approve the election, the Secretary must give the carer a written notice setting out the decision.
(7) The Secretary may, by writing, delegate all or any of his or her powers under this section to:
(a) the Chief Executive Centrelink; or
(b) an officer or employee of the Human Services Department.”
A parent who is entitled to child support may elect to end the administrative assessment on a specified date by giving a notice to the Registrar. The Act does not require the consent of the parent obliged to pay child support. The only qualification is that if a parent who is entitled to child support receives the Family Tax Benefit, the election will have no effect unless it is approved by the Secretary of the Department of Social Services or the delegate. The Act requires that the Secretary or the delegate must determine whether the parent entitled to the child support has taken reasonable action to obtain maintenance for the child pursuant to the requirements of Schedule 1, Clause 10 of the New Tax System (Family Assistance) Act 1999.
I note that the Secretary is taken to approve the election if the Secretary decides that the parent has taken reasonable action to obtain maintenance for the child (section 151A(3)). Once the Secretary provides this approval the election becomes effective and the child support terminating event will occur on the day specified by the parent entitled to the child support.[1] A consequence of the terminating event is that the Registrar must give effect to the event and the assessment of child support ends.[2]
[1] Child Support (Assessment) Act 1989, subsection 12(4)
[2] Child Support (Assessment) Act 1989, section 74
Chronology
The first respondent elected to end the administrative assessment of child support on 30 June 2014. On 9 July 2014 the delegate of the Secretary approved the election and granted the first respondent an exemption from taking reasonable maintenance action and on 16 July 2014 the Registrar gave effect to the child support terminating event. Upon becoming aware of the Secretary’s approval the first respondent’s election became effective and the Registrar was required to give effect to the terminating effect. The Registrar submitted that the Registrar retains no discretion in relation to the implementation of the terminating event approved by the Secretary and, as a consequence, no other outcome was possible in the present case.
The applicant’s objection to the assessment was first dealt with by a Registrar. The applicant objected on the basis that he was not involved in the decision making process and was therefore denied procedural fairness. The Objection’s Officer disallowed the applicant’s objection on the basis that even though the applicant was not involved in the decision making process, the process did not require his input as the first respondent was entitled to make the election.
The appeal that the applicant made to the SSAT was heard on 24 November 2014. The applicant appeared by telephone and gave sworn evidence. The first respondent advised the SSAT that she did not wish to participate and therefore did not attend. The SSAT affirmed the decision under review and as set out in paragraph 21 of the submissions of the Registrar, the relevant section of the decision is:
“Mr Redmond told the Tribunal that the CSA did not afford him procedural fairness in making the decision to end the administrative assessment as he was not given an opportunity to make any submissions about whether Ms Strolz’s election should be accepted. As explained to Mr Redmond at hearing, as the Tribunal conducts a merits review of the decision and not a judicial review, any deficiencies in the CSA’s decision-making process do not impact on the decision to be made by the Tribunal.
Mr Redmond said that his real concern is that Centrelink made the wrong decision to grant Ms Strolz an exemption from seeking child support from him. He said that, to gain an exemption, he believes Ms Strolz made claims about him that are untrue and she is thus defrauding the Commonwealth by not pursuing child support from him. He said he does not have a right to have that decision reviewed by Centrelink and has not been told the basis of the decision Centrelink made. He thus seeks to challenge that decision through his review application. Mr Redmond submitted that the tribunal has jurisdiction to review that decision made by Centrelink as part of this review process.”
The decision of the SSAT pointed out that the Tribunal does not have jurisdiction in relation to the review application to review Centrelink’s decision. The final paragraph of that decision. Paragraph 12 reads:
“As the requirements to end the assessment under section 151 of the Act have been met, the CSA correctly accepted Ms Strolz’s application to end the administrative assessment on 30 June 2014.”
Dismissal Application
The Registrar seeks to have this appeal dismissed as frivolous or vexatious under section 111CA of the Child Support (Registration and Collection) Act 1998. I was referred to a number of authorities in relation to the meaning of the terms “frivolous or vexatious”. As they were considered in relation to section 118 of the Family Law Act 1975 prior to its amendment on 11 June 2013. These were set out a paragraph 25, 26 or 27 of the Registrar’s submissions.
“25. In Lindberg & Scott [2009] FamCA 465 Cronin J considered the meaning of the terms found in the form section 118 stating at [231] to [232]:
The Shorter Oxford English Dictionary (3rd ed) defines “frivolous” as meaning “of little or no wright or importance; paltry, trumpery; not worth serious attention.” “law. In pleading manifestly futile…characterised by lack of seriousness, sense or reverence; given to trifling, silly.”
The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings (see Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].)
26. The Full Court of the Family Court discussed the test to be applied under the former section 118 in Marsden & Winch [2013] FamCAFC 177 stating at [150] to [153]:
In Attorney-General v Wentworth (1988) 14 NSWLR 481 Roden J said at [487]
Meaning of “vexatious”
This is obviously a critical term, and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceeding are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words, “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
His Honour continued:
A subjective element, such as malic, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s94(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.
We observe that Roden J was concerned with the meaning of these words within the context of a difference (sic) statute, that difference is not material to our consideration. WE agree with his Honour’s construction of the word “vexatious" and, in particular his rejection of the meaning being “legal proceedings which vex”.
Roden J then concluded at [491] with the test set out at [81] of these reasons.
27. Relevantly paragraph 81 of the Reasons in Marsden & Winch (supra) states:
His Honour then referred to the Oxford Dictionary definition of the word “to vex” which he summarised as being “to cause distress, whilst in its more modern meaning is to make somebody feel annoyed, frustrated, worried irritated or unhappy” [163]. Having determined that the father’s desire to spend time with his child was not frivolous, his Honour turned his attention to whether the proceedings initiated were vexatious. His Honour cited Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481, at [491], where in the context of the then s 84 of the Supreme Court Act 1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious. At [168] his Honour said:
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the persona against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issue to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”
In the present case the Registrar argues that neither section 151 nor section 151A of the Child Support (Assessment) Act 1989 require the applicant’s consent or input. The election to end the child support assessment is one for the first respondent and the first respondent only. Once that election is approved by the Secretary it is effective and the Registrar has a positive statutory obligation to end the assessment. The Registrar’s submission is that there is no other decision that is available. Accordingly she argues that there is no utility in the appeal as a different result cannot be achieved. I accept that submission and to that extent it is therefore appropriate to dismiss the appeal.
Procedural Fairness
To the extent that the applicant argues he was denied procedural fairness by the Registrar’s original decision and I am not persuaded that the original decision maker had to afford the applicant procedural fairness in the circumstances of section 151 and section 151A of the Child Support (Assessment) Act 1989 that denial was cured by the merits review that was conducted by the Objections Officer and subsequently the appeal conducted by the SSAT.
The Registrar further submits that while the grounds for appeal that have been set out by the applicant are global and do not raise a question of law, there was no utility in granting an adjournment to enable the applicant to obtain some advice and to consider redrawing the Notice of Appeal (Child Support) because the appeal will not, and cannot, lead to an alternate outcome because of the prescriptive nature of sections 151 and 151A of the Child Support (Assessment) Act 1989.
Conclusion
I accept the submissions of the Registrar that the Notice of Appeal (Child Support) filed on 9 December 2014 is vexatious as it is “so obviously untenable and manifestly groundless as to be utterly hopeless”. I will therefore make an Order that the Notice of Appeal (Child Support) filed on 9 December 2014 be dismissed as vexatious pursuant to section 111CA of the Child Support (Registration and Collection) Act 1988.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Associate:
Date: 22 April 2015
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