Ritchie and Ritchie and Anor (SSAT Appeal)

[2014] FCCA 1095

FEDERAL CIRCUIT COURT OF AUSTRALIA

RITCHIE & RITCHIE & ANOR (SSAT APPEAL) [2014] FCCA 1095

Catchwords:
CHILD SUPPORT – Appeal – SSAT decision – decision set aside.

Legislation:

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

Applicant: MR RITCHIE

First Respondent: MS RITCHIE

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLC 13295 of 2007

Judgment of: Judge Coates

Hearing date: 8 November 2013

Date of Last Submission: 8 November 2013

Delivered at: Brisbane

Delivered on: 30 May 2014

REPRESENTATION

Solicitors for the Applicant: Self represented

Solicitors for the Respondents:

Solicitors for the Second Respondent:

Self represented

Department of Human Services

ORDERS

1. That the Appeal from the Decision of the Social Security Appeals Tribunal filed on 5 September 2013 be allowed.

2. That the decision of the Social Security Appeals Tribunal made on 1 August 2013 be set aside.

IT IS NOTED that publication of this judgment under the pseudonym Ritchie & Ritchie & 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 BRISBANE

MLC 13295 of 2007

MR RITCHIE

Applicant

And

MS RITCHIE

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. On 13 February 2009, Hartnett FM made orders regarding enforcement of child support arrears and late payments against the appellant, as well as orders by consent including a departure application in the appellant’s favour.

2. Subsequently on 1 August 2013 the Social Security Appeals Tribunal (the tribunal) made a decision on child support matters, taking into account the orders made by  Hartnett FM on 13 February 2009 (the 2009 orders).

3. The appeal before this court is against that tribunal decision.

4. Such appeals can only be made if a question of law is identified, there being no other grounds upon which an appeal can be allowed. Section s.110B of the Child Support (Regulation & Collection) Act 1988 states:

   “110B. 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.”

5. An appropriate explanation of such a question was given in Tasman & Tisdale [2010] FMCAfam 425, where Brown FM described what is sometimes called jurisdictional error:

   “85. In particular, I reiterate an administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal, in respect of a question of law, if it:

   ·    fails to construe properly the legislative provisions applicable;

   ·    identifies the wrong issues or asks itself the wrong questions;

   ·    ignores relevant material or relies on irrelevant material;

   ·    fails to accord procedural fairness to the party before it;

   ·    makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.

   86. In summary, an appeal on a question of law:

   ·    is not a review on the merits or a rehearing;

   ·    as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;

   ·    however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;

   ·    in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error.”

6. Both the appellant father and the Child Support Registrar agree that there has been an error of law made by the tribunal and as such, the appeal is brought because a question of law arises.

7. The error it was said can be seen on the face of the tribunal decision, at paragraph 26, where the tribunal held that the departure application  allowed by the 2009 orders were subject to the appellant paying the enforced arrears and penalties, when a proper reading of the 2009 orders made no such dependent arrangement. The question of law arising is that orders of the court have been misconstrued.

8. The respondent mother refused to consent to the matter being set aside based on a question of law being identified, although she was in no position to put to the court why an error of law had not been made as contended by the appellant and the Child Support Registrar.

9. That is because the mother was self-represented and simply addressed the court about the hardship she would suffer if the tribunal decision was set aside.

10. That may be so but that does not of course prevent the setting aside of the decision upon an appeal where there is an error of law is found.

11. The respondent mother submitted, as she did before the tribunal, that the departure order was conditional on the husband complying with the enforcement order.

12. I have read the orders and I have considered the respondent’s position, but there is nothing that she has put before the court to change the interpretation of the orders as put forward by the husband and the registrar.

13. I will make a conclusive finding, that a question of law arises upon the face of the tribunal decision and that the 2009 order allowing for a departure of the father’s child support liabilities were not dependent on him paying the arrears and late fees, as he was ordered to pay.

14. On that basis I will allow the appeal because the appellant has correctly raised a question of law in so far as he asserts the tribunal erred in law because it erroneously interpreted the 2009 orders.

15. The Tribunal erroneously interpreted the court orders as there is nothing on the face of the court orders which makes the departure order conditional on compliance with the enforcement orders.

16. In making the decision that it did, the tribunal erred and made an error of law, thus triggering the jurisdiction to find that a question of law has been raised.

17. Accordingly it is appropriate to set aside the tribunal’s decision and in the circumstances there is no utility in remitting the matter to the tribunal to be re-determined.

18. The respondent mother should seek legal advice and consider whether a receiver could be appointed to recover monies from the appellant as the orders of 2009 declared that the appellant owed $52,393.56, being $36,121.97 in arrears and $16,271.59 penalties and as I understood the matter, most of that has not been paid.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Coates

Date:       30 May 2014