Sadler and Sadler (SSAT Appeal) - [2009] FMCAfam 855

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SADLER & SADLER (SSAT APPEAL)

[2009] FMCAfam 855

CHILD SUPPORT – Appeal from decision of SSAT – refusal of leave to bring application made out of time.

Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988

Tasman & Tisdall [2008] FMCAfam126
Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] 128 CLR 336

Applicant:

MR SADLER

Respondent:

MS SADLER

File Number:

BRC3355 OF 2009

Judgment of:

Slack FM

Hearing date:

9 July 2009

Date of Last Submission:

9 July 2009

Delivered at:

Brisbane

Delivered on:

25 August 2009

REPRESENTATION

The Applicant appeared on his own behalf.

The Respondent did not appear.

ORDERS

That the Appeal from the decision of the Social Security Appeals Tribunal dated 23 March 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC3355 of 2009

MR SADLER

Applicant

And

MS SADLER

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 23 March 2009 to affirm the decision under review, thereby dismissing the applicant’s appeal against a decision refusing an extension of time within to lodge an objection of a decision dated 10 August 1999.

Background

A child support assessment issued on 7 August 2008 for the assessment period 1 July 2008 to 31 August 2008 which assessed child support at a collection rate of $646.75 per month (s.110K documents).
Also, on 7 August 2008 the applicant was notified of acceptance of a child support agreement made on 10 August 1999.
The applicant lodged an objection by letter to the Child Support Registrar on 18 October 2008. The letter of objection is reasonably clear in its terms in that the applicant objected to the assessment dated 7 August 2008 and in particular, the inclusion in the assessment of an annual inflation factor adjustment.
In essence, the applicant was objecting to an assessment to the payment of child support above $100 per week.
In his letter (page 64 of the s.110K documents) he sought registration of an agreement dated 25 July 1999 to replace the original Form 102 agreement dated 24 May 1999.
The Child Support Registrar treated the application as objecting to the Child Support Agency decision to accept a child support agreement….on 10 May 1999.
On 26 November 2008 the applicant lodged an application for a request for an extension of time.
An objections officer refused the extension of time request on

5 January 2009 (page 3 of the s.110K documents).
The applicant lodged his appeal against the objection decision on

27 January 2009. The decision of the SSAT was made on 23 March 2009.

Principles

In Tasman & Tisdall [2008] FMCAfam126, FM Brown said (at para 44):
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect to the question of law, if it:
(i)fails to construe properly the legislative provisions applicable;
(ii)identifies the wrong issues or asks itself the wrong questions;
(iii) ignores relevant material or relies on irrelevant material;
(iv) fails to accord procedural fairness to the party before it;
(v)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.

Decision under review

The difficulty in this matter is identifying the decision that the applicant objects to. There were, in fact, two decisions made on

7 August 2008 (pages 66 and 67 of the 110K documents). One was a decision confirming acceptance of the child support agreement made on “10 August 1999” and the other was the child support “assessment” for the 2008 period named in the assessment.
The applicant does not seem to dispute that an agreement was entered into by himself and his wife with respect to child support obligations. He does not seem to object to the decision to accept the agreement. He objects to the way the Child Support Registrar has construed the agreement, in particular, the decision to include an adjustment for an inflation factor.
As I perceive the applicant’s case, it is, in summary, that the Child Support Registrar has misconstrued the terms of the agreement. He submits that, at the time the parties entered into the agreement:
a)there was a common intention that the amount was not to be adjusted by an inflation factor evidenced by the document;
b)the mark in the Yes box in Question 26 on the document evidencing the agreement was a cross (and not a tick) thereby signifying that such clause was not to be included in the agreement;
c)the form itself requires a tick where applicable (page 68 of the s110K documents).
The applicant says that the document is clear on its face and the inflation adjustment ought not to have been included in the assessment for the relevant period.
The reasons reveal that the decision appealed was a decision made by the Child Support Agency on 5 January 2009 to refuse an application for an extension of time within which to lodge an objection to a decision dated 10 August 1999.
Whilst the SSAT approached the application for extension of time with due regard to principle, it did so on the basis that it was dealing with an objection to a decision made in 1999. It is not immediately clear that that was the decision being objected to or that that was the only decision being objected to by the applicant.
In so far as that decision was concerned, I could not discern any error of law in the way that the SSAT approached the decision on the application to extend time to appeal against the decision of the Registrar to accept the agreement in 1999
The applicant, though, argues that this was not the objection that he made. The primary application was to object to the child support assessment made by the Agency on 7 August 2008.
The decision that was appealed was a decision of the Registrar to make an assessment under the terms of the agreement which included an inflation adjustment factor for the child support assessment commencing 1 July 2008.
In other words, the applicant was objecting to the decision to include as part of any child support assessment an amount above $100 per week for the child support period commencing 1 July 2008.
The SSAT does not seem to have dealt with that part of his application for leave to bring the application out of time and in so far as there may have been error on the part of the SSAT, it is that they failed to deal with that part of the application.

Re-exercise of the discretion

Explanation of delay

It was necessary for the applicant to make an application for an extension of time because the application, when lodged in October 2008, was out of time to appeal against the particulars of the assessment. In his letter dated 26 November 2008 requesting an extension of time (page 44 of the s.110K documents), he sets out the contacts that he made with the Child Support Agency officers in relation to this matter and had notified his intention to object within time on 25 July 2008.
Whilst he did not lodge his application within time, I am satisfied that he was actively taking steps in relation to the decision and has properly explained the delay in lodging his application.

Prejudice to the payee parent

The application is an application that relates to the particulars of the child support assessment for the child support period from 1 July 2008. The applicant has not lodged any objection to any other child support period and as the payer parent had not, at the time of the objection, received the monies, I do not consider that it could be said that she suffers a prejudice in the matter.

Merits of the substantial application

Of greater concern is the merit in the application. It is not in dispute in these proceedings that:
a)A child support agreement was lodged and accepted by the Agency in the form copied at pages 68 to 71 of the s.110K documents.
b)In answer to the question at Box 26 of the document Are the above payments to be adjusted on 1 July each year by an inflation factor? there is a mark in the Yes box and no mark in the No box.
c)The agreement was accepted and registered by the Child Support Registrar in accordance with the requirements of the Act at that time.
d)After registration of the agreement, child support was paid by the respondent and each year on 1 July there was an adjustment by an inflation factor.
There was no objection by the applicant to the making of those payments until 2008.
The applicant explains the delay in taking any action with respect to the alleged misconstruction of the agreement by the Child Support Registrar was on the basis that he always believed that the Regulations provided for an inflation adjustment and he believed that the additional payment was being made, not in accordance with the terms of the agreement, but rather in the terms of the Regulations that had been prescribed.
He points as evidence of the common intention between the parties to another document said to be an agreement signed by the parties on

25 July 1999 (pages 74 and 75 of s.110K documents) in which the wife agreed that there would be $100 per week paid for the children and there is no mention of any adjustment for an inflation factor.
At this stage though, there is no evidence from the payee about the terms of the agreement.
There is no evidence from the applicant as to who it was that completed the form and whether the mark in Question 26 was made by two people or just one and why it was, if there was a mark in the Yes box, that he did not cure the problem by simply placing a tick in the No box.
The question in this matter is whether there was any error on the part of the Child Support Registrar in assessing the child support in the way that occurred for the relevant child support period.
The only basis upon which the applicant challenges the assessment is that the Registrar has misconstrued the agreement. The Registrar was, in my consideration, entitled to construe the agreement in the way that he/she did.
In deciding whether to accept a child support agreement, the Registrar may act on the basis of the documents accompanying the application and the agreement itself and is not required to conduct any inquiries or investigations into the matter..(s.91 of the Child Support (Assessment) Act [hereafter “the Assessment Act”]). There are limits to the exercise of the discretion by the Registrar to accept or not accept an agreement (s.98U of the Assessment Act).
The Registrar has no power to vary the agreement (s.80F of the Assessment Act). The Registrar has the power to amend an administrative assessment (s.75 of the Assessment Act) but that power relates to administrative assessments made under Part 5 of the Assessment Act. The provisions of the agreement, in so far as they require payment of periodic amounts, have effect, for the provisions of Part 5, as if they were an order made by consent by a Court under Division 4 of Part 7 (orders for departure from administrative assessment in special circumstances). The power to amend pursuant to s.75 of the Assessment Act does not seem to extend to the power to amend a child support assessment arising from a limited child support agreement, save for the power to amend an assessment pursuant to the provisions of Part 6A of the Assessment Act, which is not the application in this matter..
If I am wrong in that and there is such a power vested in the Registrar, then it seems to me it can only arise under sub-division C of Part 5 of the Assessment Act. Under s.66D of the Assessment Act, the Registrar in making an assessment …may act on the basis of the documents and information in his or her possession and is not required to conduct any enquiries or investigation into the matter..
At law, it is presumed that a written document signed by the parties is the true record of their agreement. Whilst the document provides for a “tick” to be recorded in the relevant box and in this case there was a “cross”, there was no mark in the “No” box. I do not consider that the Registrar was obliged to make further enquiries regarding the terms of the agreement.
The presumption can be displaced if there is clear evidence of a mistake in the recording of the agreement (Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 315, Mason J):
What is of importance is that the purpose of the remedy is to make the instrument conform to the true agreement of the parties whether writing by common mistake fails to express that agreement accurately and there has been a firm insistence on the requirement that the mistake as to the writing must be common to the parties and not merely unilateral, except in cases of a special class …….
It is now settled that the existence of an antecedent agreement is not essential to the grant of relief by way of rectification. It may be granted in cases where the instrument sought to be rectified constitutes the only agreement between the parties, but does not reflect their common intention.
Whilst it is that the presumption can be displaced, I do not consider that the Registrar has the power or indeed the responsibility to determine whether to remedy an agreement by rectification. That is a remedy that can and should be pursued by the parties at law. The Registrar had made assessments based on the same interpretation of the accepted document since 1999 and those assessments had included an inflation factor in each year of assessment. There was no challenge to that interpretation until 2008.
I do not consider that there was any error on the part of the Registrar in making the child support assessment on 7 August 2008 and therefore I do not consider that the application has sufficient prospects of success to warrant an extension of time for the hearing of the application.
I dismiss the appeal.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Slack FM

Associate: Karen Smith

Date: 25 August 2009