Sanchez and Taylor (SSAT Appeal)

[2011] FMCAfam 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SANCHEZ & TAYLOR (SSAT APPEAL) [2011] FMCAfam 1142

CHILD SUPPORT – Appeal on a question of law from SSAT – appeal is against decision not reasons – decision correct – appeal dismissed.

Child Support (Assessment) Act 1989, ss.25(2)(b)(ii), 25(2)(c)
Child Support (Registration & Collection) Act 1988, s.110B

Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467
Copperart Pty Ltd v Commissioner of Taxation (1994) 50 FCR 345
Driclad Pty Ltd v Commissioner of Taxation (Cth) (1968) 121 CLR 45
Landsal Pty Ltd (In liq) v REI Building Society (1993) 41 FCR 421
Marsden & Winch (Costs) [2008] FamCAFC 32
Miller & Harrington [2008] FamCAFC 150
Secretary, Department of Social Security v Lowe (1999) 56 ALD 609

Applicant: MS SANCHEZ

Respondent: MR TAYLOR

File Number: BRC 5200 of 2009

Judgment of: Jarrett FM

Hearing date: 22 March 2011

Date of Last Submission: 22 March 2011

Delivered at: Brisbane

Delivered on: 25 October 2011

REPRESENTATION

The Applicant appeared in person.

The Respondent appeared in person.

ORDERS

1. The Notice of Appeal (Child Support) filed on 25 February 2011 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 5200 of 2009

MS SANCHEZ

Applicant

And

MR TAYLOR

Respondent

REASONS FOR JUDGMENT

1. By her Amended Notice of Appeal (Child Support) filed on 25 February, 2011 Ms Sanchez appeals the decision of the Social Securities Appeals Tribunal made on 24 August, 2010. By that decision, the SSAT affirmed a decision of an objections officer of the Child Support Agency to reject an application made by Ms Sanchez on 6 June, 2005 for an administrative assessment of child support.  The decision of the objections officer reversed an earlier decision of the Child Support Agency to accept Ms Sanchez’s application for an administrative assessment.  Mr Taylor opposes this appeal.

2. To state the position in that way, however, disguises the curious nature of this appeal.  Ms Sanchez’s own words are apt to set the scene:

   14. Very briefly, my son was born in Norway. When he was 6 weeks old, I returned to Australia. Upon my return, I attended Centrelink to advise of my return and of [X]’s birth. At the same time, I advised Centrelink that [X]’s father, who is Mr Taylor, resides in Norway but that he was staying with me for six months. I was asked to provide Mr Taylor's passport showing his tourist visa and his return ticket to Norway, which I did. I also provided his address in Norway. The Centrelink officer discussed the Social Security Act with me and determined that we were not considered to be in a marriage like relationship because Mr Taylor was not a resident of Australia.

   15. I was therefore directed by Centrelink to register with· the CSA and it was as a Centrelink requirement that I registered with CSA in June 2005. At the time of registration with the CSA, I advised of Mr Taylor's residency and address in Norway. The CSA accepted my application. According to the CSA database, the CSA did not have powers to collect in Norway.

   16. All of this information was provided to both the CSA and the SSAT.

   17. Five years later, Mr Taylor objected to the decision. The CSA accepted his objection and cancelled the registration on 8 June 2010 effective 6 June 2005 on the basis that I was living in a genuine domestic relationship at the time of the registration. The SSAT have upheld that decision.

   18. So now I find myself in the situation where on the one hand, Centrelink determined that I was not in a marriage-like relationship because Mr Taylor was not a resident of Australia and directed me to register with CSA and then the CSA and SSAT have stated that the registration should not have been accepted because I was in a marriage-like relationship with Mr Taylor. I maintain that the decision of CSA and SSAT is the wrong decision.

3. The ultimate outcome of Ms Sanchez’s application for administrative assessment is not in dispute. She contends that in June, 2005 the Child Support Registrar ought to have rejected her application because she could not satisfy a statutory requirement for the making of the assessment – in particular that the liable parent was a resident of Australia pursuant to s.25(2)(b)(ii) of the Child Support (Assessment) Act 1989. Thus, she does not cavil with the outcome of the objections officer’s consideration of the application, or the SSAT’s decision to affirm that outcome. Her complaint is that if the CSA and the SSAT had considered s.25(2)(b)(ii) at all, they would not have had to go on to consider s.25(2)(c) of the Assessment Act. Indeed, she says that it was erroneous to consider that section at all.

4. Mr Taylor says that the result should be the same, but for a different reason to that argued for by Ms Sanchez – namely that the parties were in a de facto relationship at the time of Ms Sanchez’s application. 

5. On each party’s case, therefore, the decisions of the objections officer and of the SSAT are correct, but Ms Sanchez argues that the reasons for arriving at that decision are wrong.

6. Ms Sanchez’s motivation for the application is:

   4. The decision as it stands gives the impression that I, of my own volition, applied to the CSA for an administrative assessment of child support and that my application correlates to my application to Centrelink for benefits as a sole parent while I was allegedly in a genuine domestic relationship with the respondent. The facts of the matter are that this did not occur.

   5. I am therefore appealing to this Court for a correct decision that has been determined by the correct application of the law and reflects the correct facts and thereby removes any inference that was any wrongdoing or deception on my part. In other words, I would like to set the record straight.

7. Ms Sanchez wants the Court to make a finding that her original application for an administrative assessment ought to have been rejected by the Child Support Registrar because Mr Taylor was not a resident of Australia at that time.  Her argument in that regard is clearly correct.  At the time of her application, the Assessment Act provided:

   25  Persons who may apply—eligible carers
    (1)  An application made under this section is a carer application.

   (2)  A person may apply to the Registrar under this section for administrative assessment of child support for a child if:

   (a)  the person is an eligible carer of the child; and

   (b)  the person is seeking payment of child support for the child from a person who is:

   (i)  a parent of the child; and

   (ii)  a resident of Australia on the day the application is made; and

   (c)  the person is not living with the person from whom payment of child support is sought as the partner of that person on a genuine domestic basis (whether or not legally married to that person); and

   (d)  the person complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws).

8. Having regard to the terms of s.25(2)(b)(ii) of the Assessment Act her application could have been rejected because she was not seeking payment of child support from a person who was a resident of Australia on the day the application was made. She could not satisfy the application criteria to make a carer’s application for an administrative assessment for child support.

9. However, the right of appeal granted by s.110B of the Child Support (Registration & Collection) Act 1988 is against “any decision of the SSAT in that proceeding”. The right is not granted in respect of the Tribunal’s reasons for its decision. 

10. In the context of appeals from a judicial decision the principle is clear.  Where the order appealed from is correct, but the reasons erroneous, the appeal will generally be dismissed because a right of appeal relates to a court’s orders, not its reasons: Driclad Pty Ltd v Commissioner of Taxation (Cth) (1968) 121 CLR 45 at 64; Landsal Pty Ltd (In liq) v REI Building Society (1993) 41 FCR 421; Copperart Pty Ltd v Commissioner of Taxation (1994) 50 FCR 345; Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467, Marsden & Winch (Costs) [2008] FamCAFC 32 at [18], Miller & Harrington [2008] FamCAFC 150 at 125.

11. I am cognisant that I am not conducting an appeal in the traditional sense.  I am dealing with an application in the original jurisdiction of this Court.  Moreover, I am not asked to consider the order of a court, but rather a decision of a tribunal.  But it seems to me that the principles apply equally in a case of an appeal, so called, from a decision of the SSAT to this Court.  The right granted to Ms Sanchez is to appeal the decision of the Tribunal, not the reasons for the decision.

12. The decision of the SSAT in this matter is recorded in its letter to

    
    

    Ms Sanchez notifying her of the decision as follows:

    On 24 August, 2010 the Tribunal decided to affirm the decision under review

    This means that the appeal is not successful.

13. In the context of an appeal from a judicial decision, however, in certain circumstances an appellate court may add a declaration to the order on appeal without otherwise setting the order aside.  Two cases illustrate the point:  Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 and Secretary, Department of Social Security v Lowe (1999) 56 ALD 609. In each of those cases, the Full Court agreed with the disposition of the case by the judge at first instance but took issue with the reasons of the trial judge. In  Lowe the Full Court explained the position at [16] as follows:

    [16] The appeal poses one remaining difficulty. The order made at first instance simply dismissed an appeal, so called, from the decision of the tribunal. That appeal was brought by Mr Lowe against the denial of any payment of SPP to him, the tribunal having decided under s 251 that it should be paid solely to Miss Schembri. But she was not a party to the proceeding brought in this court. (We observe, in passing, that she should have been joined, as Mr Lowe's appeal could have affected her rights.) The difficulty is that, although the appellant secretary of the department has persuaded us the learned judge was wrong in holding neither parent eligible to receive a SPP, we are satisfied he was correct in dismissing Mr Lowe's appeal, since no error of law was shown to vitiate the decision of the tribunal. Courts of appeal have repeatedly held that a right of appeal relates to a court's orders, not to its reasons. Can we, then, correct the error we perceive in the reasons given for the making of an order which we consider should stand? The answer is to be found in a series of cases, which are cited and applied in Baxter Healthcare Pty Ltd v Comptroller-General of Customs (1997) 72 FCR 467 at 483, 491, 499. An order, read in the light of the reasons justifying it, may leave open to be implemented conclusions which a full court holds to be erroneous. Had those conclusions been expressed in a declaration, it would have been set aside or varied. In such a case, Baxter Healthcare affirms the power of the court on appeal to vary the order made below by the addition of an appropriate declaration, as was actually done in that case at 501.

    [17] Accordingly, the appeal should be allowed, and there should be added to the order made at first instance a declaration that the tribunal did not err in law in awarding the SPP to Miss Schembri. The cross-appeal should be dismissed. There should be no order as to costs.

14. In the present case, Ms Sanchez is alive to the principle that this Court cannot interfere with the findings of fact of the SSAT but rather, the appeal is on a question or questions of law.  Thus, although she does not agree with the SSAT's findings of fact, she did not attempt to impugn the fact finding of the Tribunal or its ultimate conclusion that she was not entitled to an administrative assessment of child support.  Indeed, it is her case that she is not so entitled:

    23. I understand that the outcome of this appeal would have the same effect, namely, that the registration should not have been accepted by the CSA. Notwithstanding this, I wish to appeal because the outcome I am seeking is a correct decision that has been determined by the correct application of the law that reflects the correct facts. At the moment, I have a wrong decision based on the misapplication of the law that contains errors of facts.

15. Even if Ms Sanchez’s argument about the proper application of s.25(2)(b)(ii) is correct, it does not mean that the SSAT’s determination about s.25(2)(c) of the Assessment Act is incorrect. It may be factually incorrect, but no question of law concerning the SSAT’s decision is said to arise in respect of its fact finding. The two potential reasons for denying Ms Sanchez an entitlement to apply for an assessment are not mutually exclusive. Both could be correct.

16. Accordingly, no occasion arises to:

    a)Set aside the decision of the SSAT; or

    b)Add a declaration to the order of the SSAT that Ms Sanchez was not entitled to an administrative assessment of child support to correct an otherwise erroneous reason for the order in the Tribunal.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  25 October 2011