Schmidt & Geller (SSAT Appeal)

Case [2012] FMCAfam 735


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHMIDT & GELLER & ANOR (SSAT APPEAL) [2012] FMCAfam 735

CHILD SUPPORT – APPEAL – Appeal from decision of Social Security Appeals Tribunal – where SSAT set aside decision under review – non agency payments – where Tribunal decided that no payments by Appellant be credited as non agency payments – whether Tribunal failed to take into account relevant considerations – procedural fairness – whether Appellant denied procedural fairness – merits review – unreasonableness – whether decision was one at which no logical, reasonable or rational person could arrive.

CHILD SUPPORT – APPEAL – Jurisdiction – an appeal from a decision of the SSAT is not a matrimonial cause – s. 39 of the Family Law Act 1975 (Cth) does not apply to an appeal from the SSAT to the Federal Magistrates Court.

EVIDENCE – APPEAL – Appeals from SSAT on a question of law only – fresh evidence – the jurisdiction of the Federal Magistrates Court under s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) does not permit the reception of further evidence which was not before the SSAT.
FAMILY LAW – Jurisdiction in matrimonial causes.

COSTS – no order for costs – where Second Respondent submitted that appeal should be dismissed without costs.

Administrative Appeals Tribunal Act 1975 (Cth) s.44
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth), ss.71, 87, 89, 104, 103T, 110B
Family Law Act 1975 (Cth) ss.39, 104
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649
Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Comcare Australia v Lees (1997) 151 ALR 647
CSR v Cigna Insurance (1997) 189 CLR 345
Hartnett v Migration Agents Registration Authority [2004] FCA 50
Henry v Henry (1996) 185 CLR 571
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712; (2007) FLC 98-034
Minister for Immigration and Citizenship v SZMDS (2010) HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Phillips v Commissioner for Superannuation [2005] FCAFC 2
Repatriation Commission v Farley-Smith (2007) 96 ALD 348
Servos v Repatriation Commission (1995) 56 FCR 377
SZMDS v Minister for Immigration & Anor [2008] FMCA 1064
SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
Voth v Manildra Flour Mills (1990) 171 CLR 538
Waterford v The Commonwealth (1987) 163 CLR 54
Whipp v Richards [2012] FamCAFC 11
Appellant: MR SCHMIDT
First Respondent: MS GELLER
Second Respondent: CHILD SUPPORT REGISTRAR
File Number: SYC 7744 of 2011
Judgment of: Scarlett…

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AGLC
Schmidt & Geller (SSAT Appeal) [2012] FMCAfam 735
Case
[2012] FMCAfam 735
Decision Date

CaseChat Overview and Summary

In the case of Schmidt & Geller, the appellant appealed a decision made by the Social Security Appeals Tribunal (SSAT) regarding a child support matter. The appellant argued that the SSAT failed to consider relevant factors, denied him procedural fairness, and made an unreasonable decision. The appeal was heard by the Federal Magistrates Court. The key legal issues were whether the SSAT failed to take into account relevant considerations, whether the appellant was denied procedural fairness, and whether the SSAT's decision was unreasonable.

The court found that the appellant's first ground of appeal was not made out, as the SSAT had granted an adjournment for the parties to obtain and comment on further information. The appellant had not raised any complaints about not receiving the material upon which the first respondent was relying, and therefore, he had not established that he was denied procedural fairness in this regard. The second ground of appeal was also not made out, as the SSAT had considered the full facts in the affidavits presented to it by the first respondent. The court found that the SSAT's decision was not unreasonable, as it was one at which a logical, reasonable, or rational person could arrive.

The Federal Magistrates Court dismissed the appeal against the decision of the SSAT made on 17 November 2011 and despatched on 22 November 2011. The court also noted that an appeal from a decision of the SSAT is not a matrimonial cause, and therefore, section 39 of the Family Law Act 1975 (Cth) does not apply. The court further noted that an appeal from the SSAT to the Federal Magistrates Court is on a question of law only, and fresh evidence cannot be received which was not before the SSAT. The second respondent submitted that the appeal should be dismissed without costs, and the court made no order for costs.

Orders

Orders of the court

1.

The Appeal against the decision of the Social Security Appeals Tribunal made on 17 November 2011 and despatched on 22 November 2011 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Appellant’s first Ground of Appeal is:1. My right of fair representation were prejudiced as a result of: 1) SSAT failing to ensure I got an opportunity to review and comment upon copies of the affidavits presented (i.e. brought into evidence) by Ms Geller [to support her assertion that this matter had not been resolved in the UK in 1995] to the SSAT Appeal hearing on 8th November 201, due to an error or omission on the part of SSAT; 2) I was not given the opportunity to rebut statements made by the CSA to SSAT that I had not advised them of direct payments that I was making or that I was aware of the CSA assessed liability in this matter. As a consequence, my rights of presentation to contradict statement made, or present evidence to contradict statements made by Ms Geller and/or CSA prejudiced. The Appellant attended the SSAT hearing by telephone. He annexed a copy of the transcript of the hearing to his affidavit of 6th February 2012. The Transcript shows that the Tribunal asked the Appellant if he had received a bundle of papers from the Child Support Agency and he said:I haven’t got them in front of me … tomorrow …I have, … gone through them[43][43] Transcript p.3 lines 28 and 32 The Tribunal stated that it adjourned the matter on 2nd November 2011 to obtain further information from the Child support Agency and allow the parties to produce further information. The Tribunal forwarded the material from the Child Support Agency to the parties on 9th November for comment, giving them until 16th November to do so. The Tribunal noted that:No responses were received.[44] [44] Tribunal Decision page 1 The Appellant did not raise with the Tribunal any complaint that he had not received the material upon which the First Respondent was relying. I am satisfied that the Tribunal did grant an adjournment so that further information could be obtained and forwarded to the parties for their comments. The Appellant’s claim that he was not given an opportunity to rebut claims by the Child Support Agency to the SSAT has not been made out. The Appellant has not established that in this regard he was denied procedural fairness. Ground 1 of the Appeal has not been made out. The second ground of appeal states:that there is prima facie evidence in the affidavits themselves, coupled with my comments in the affidavit of 6th February 2012 (and supporting evidence), that the issue of who would support, or maintain, care for, provide residence, etc. for our daughter either retrospectively in the UK or if allowed to reside in Sydney were dealt with in ward-ship and prohibition order (both of which I had taken out to prevent the payee leaving the UK with our daughter) affidavits and hearings in the Family Division of English High Court in 1995. Failure to take into account the full facts in the affidavits presented to SAT by Ms Geller and failure to ensure my representation to the affidavits meant that the SSAT did not fully enable me to have a fair hearing in the SSAT appeal.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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