Schmidt & Geller (SSAT Appeal)
[2012] FMCAfam 735
•14 August 2012
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. 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 FM |
| Hearing date: | 12 June 2012 |
| Date of Last Submission: | 12 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2012 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant attended by telephone |
| Solicitors for the Appellant: | No solicitor |
| Counsel for the First Respondent: | The First Respondent appeared in person |
| Solicitors for the First Respondent: | No solicitor |
| Solicitor for the Second Respondent: | Ms Bell |
| Solicitors for the Second Respondent: | Department of Human Services Legal Services Division |
ORDERS
The Appeal against the decision of the Social Security Appeals Tribunal made on 17 November 2011 and despatched on 22 November 2011 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Schmidt & Geller & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7744 of 2011
| MR SCHMIDT |
Appellant
And
| MS GELLER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Appeal
This is an appeal from a decision of the Social Security Appeals Tribunal made on 22nd November 2011 affirming a decision of the Child Support Registrar not to credit payments made by the Appellant as direct payments to the First Respondent, his former wife.
By his 3rd Amended Notice of Appeal filed on 23rd March 2012 the Appellant seeks the following Orders:
1. SSAT decision of the 22 November 2011 be rescinded.
2. CSA decision on the liability assessment of Mr Schmidt be rescinded and appropriate damages and restitution be granted to me, i.e. Mr Schmidt (the appellant).
3. That in the absence of the order in 2 not being granted that an Order be issued recognising payments made by Mr Schmidt which were the subject of the initial appeal be recognised as “direct payments” and appropriate damages and restitution be granted to Mr Schmidt.
4. That a copy of the actual recording of the SSAT hearing on the 2nd November 2011 be forwarded to Mr Schmidt (if not already done) to support his application for the above orders and for any further actions I may have.
5. That an order be granted for Mr Schmidt to obtain from the St George Bank (now Commonwealth Bank) the bank statements for account (omitted)(BSB: (omitted)) since 2005, and any supporting documentation of receipts, payments, transfers and withdrawal from the primary account in which all direct payments paid by Mr Schmidt have, or should have been, deposited.
6. No costs be awarded against the appellant as this appeal arises from errors or omissions by SSAT. However costs be awarded to Mr Schmidt as a consequence of him possibly to have to attend a hearing in Sydney (I am presently in London, UK) as a result of errors or omissions by SSAT in failing to ensure I could comment on copies of affidavits filed by Ms Geller (the payee), or failure by SSAT to ensure I could have fair representations to statement by the CSA on my purported lack of contact with them on my assessed liability or “direct payments” being paid in the interim.
Background
The Appellant and the First Respondent were married on (omitted) 1991 in Sydney. They are the parents of a daughter, X, who was born on (omitted) 1992. She is now an adult, being 19 years of age.
In 1995, there were proceedings between the parties in the Family Division of the High Court of Justice relating to the child X. The Appellant in these proceedings sought an order making the child a ward of the Court. The First Respondent Mother sought interim and final residence orders and an order for leave to remove the child from the United Kingdom permanently, and lump sum or periodical payments for the benefit of the child. On 2nd February 1995 the Court ordered that the child should reside with the Respondent and this order was continued on 24th February. The Court also accepted undertakings by the Appellant to pay certain sums to the Mother by way of maintenance for herself and the child. On 23rd March 1995 the Court made orders by consent providing that the child would reside with the Mother, who was given leave to remove the child from the jurisdiction permanently.[1]
[1] Affidavit of Mr Schmidt 5.6.2012 Exhibits 14 & 15
The Mother commenced divorce proceedings in the United Kingdom in September 1995.[2]
[2] Ibid
On 3rd July 1997, in Australia, the Mother applied for an administrative assessment of child support under the provisions of the Child Support (Assessment) Act 1989. She also asked that the assessment be registered under the Child Support (Registration and Collection) Act 1988.
The Appellant applied to the Child Support Registrar on 5th April 2011 that deposits and transfers of money paid to the Mother between 10th May 2006 and 7th December 2009 should be credited as direct payments of child support, as provided by s.71 of the Child Support (Registration and Collection) Act. The payments that he claimed were:
a)10th May 2006 $1382.00;
b)29th August 2006 $1200.00
c)31st October 2007 $3231.80 (travel costs to (India)
d)31st October 2007 $ 991.08 (travel costs to (India)
e)4th November 2007 $ 586.53 (travel costs to (India)
f)30th January 2008 $1276.00 (laptop)
g)7th December 2009 $1104.95 (laptop).
On 2nd May 2011 the Child Support Registrar credited two of the payments as direct payments, because the Mother agreed that those payments were made in lieu of child support. Those were payments made on 29th August 2006 and 31st October 2007 in the total amount of $3,000.00. This decision was made on the basis that the First Respondent agreed that those payments were for child support.
The Appellant objected to that decision but on 2nd August 2011 a delegate of the Registrar disallowed the objection to the refusal to credit non-agency payments totalling $6,772.36, under sub-paragraph 87(i)(b)(i) of the Child Support (Registration and Collection) Act.[3]
[3] Outline of Submissions of the Second Respondent 12.6.2012 at page 2 (5)
Application to the Social Security Appeals Tribunal
On 29th August 2011 the Appellant applied to the Social Security Appeals Tribunal (SSAT) for a review of the Registrar’s decision to disallow his objection under s.89 of the Act. The Application was heard on 2nd November 2011 in Hobart. Both parties attended by telephone, the Appellant from London and the first Respondent from Sydney.
The Tribunal noted in its Decision that it had adjourned the proceeding to obtain further information from the Child Support Agency. This information was provided to both parties on 9th November for comment, and they were given until 16th November to comment. The Tribunal received no response from either party.
On 17th November 2011 the Tribunal decided to set aside the decision under review and substitute its decision that none of the payments be credited as non agency payments against the Appellant’s maintenance liability. The decision was despatched on 22nd November 2011.
The SSAT Decision
In its Reasons for Decision, the Tribunal stated that it had considered the following:
a)Statements and documents submitted by the Child Support Agency on 26th September 2011;
b)Supplementary papers received on 2nd November 2011;
c)Submissions with attachments provided by the Appellant on
i)17th October 2011;
ii)20th October 2011;
iii)31st October 2011; and
iv)2nd November 2011; and
d)Two submissions with attachments provided by the First Respondent on 7th November 2011.
The Tribunal identified the issue to be determined as:
…whether the sum of $9,772.36 should be credited towards Mr Schmidt’s enforceable maintenance liability as a non agency payment.[4]
[4] Tribunal Decision at [15]
Under the heading Time Line the Tribunal considered the history of events from 1995, when the parties separated, until 2007, when the First Respondent and the child travelled to India so that the Appellant might spend time with the child.
Under the heading Consideration the Tribunal considered the relevant sections of the Child Support (Registration and Collection) Act 1988, being ss.4, 17 and 71. Based on its understanding of those sections, the Tribunal described the relevant considerations in this way:
21.It follows that in order to credit a non agency payment to the payee, the Tribunal must be satisfied of the following matters:
· The payment of an amount must have actually been made;
· The payment must have been made during a period when an enforceable maintenance liability was enforceable by the Agency[5] (a child support assessment liability); and
· Both the payee and the payer must have intended that the payment was paid in complete or partial satisfaction of a child support amount payable under the liability.[6]
[5] i.e. the Child Support Agency
[6] Tribunal Decision at [21]
The Tribunal considered the evidence and asked itself the following questions:
· Were the payments made?
· Were the payments made in relation to a period when an enforceable maintenance liability was in place?
· Did both the payee and the payer intend that the payments were paid in complete or partial satisfaction of a child support amount payable under the liability?
The Tribunal answered the first question by finding that the Appellant made seven payments between 10th May 2006 and 7th December 2009.
The Tribunal answered the second question by finding that the payments were all made between 3rd July 1997 and 12th December 2010 and were therefore made during an enforceable maintenance liability period.
The next matter for consideration was whether the payer and the payee intended that the payments were paid in complete or partial satisfaction of a child support amount payable under the liability.
In answering this question, the Tribunal considered the evidence of both parties. The Appellant’s evidence is summarised in paragraphs 24 to 35 of the decision and the First Respondent’s evidence is summarised in paragraphs 36 to 44 of the decision. The Tribunal then summarised the evidence provided for each payment.
In its evaluation of the parties’ evidence, the Tribunal found that their evidence was mostly consistent. The Tribunal found that the main issue was the Appellant’s contention that he was not legally liable to pay child support because the First Respondent had effectively waived her right to child support by saying in an affidavit in the court proceedings in the United Kingdom that she could support herself and the child if she were to return to Australia. The Tribunal found that the affidavit did not provide evidence to support that contention and not only found that the Appellant’s affidavit confirmed that he intended to support his daughter but:
In any case, if Mr Schmidt did not think he was legally liable to pay child support then any payments he made for X’s benefit could not be said to be to meet his child support liability.[7]
[7] Tribunal Decision page 8 paragraph [51]
The Tribunal accepted that the Appellant had been making payments to the child for her benefit.
The Tribunal noted that the First Respondent had agreed that an amount of $3,000.00 could be accepted by the Child Support Agency as a non agency payment as her airfare to India allowed her to have a holiday. The Child Support Agency credited the total amount of $3,000.00 as a non-agency payment. However, the Tribunal took a different view, saying:
Ms Geller did not actually state to the agency[8] that the payments had been made to meet or partially meet Mr Schmidt’s child support liability. Although Ms Geller agreed to accept that $3000.00 could be credited as non-agency payments this does not actually make them non-agency payments as defined in the legislation.[9]
[8] i.e. the Child Support Agency
[9] Tribunal Decision page 9 paragraph [56]
The Tribunal considered the sum of $4,809.41 made by the Appellant so that X could visit him in India. The Tribunal found that this arrangement was made because the Appellant felt unable to visit Australia due to a Departure Prohibition Order being in place. The Tribunal found that whilst the payment benefited the child it was not for her normal maintenance costs. The Tribunal stated:
There is no evidence to show that Ms Geller accepted this payment as being in lieu of child support or as being in complete or partial payment of Mr Schmidt’s child support liability.[10]
[10] Ibid at [57]
The Tribunal also found that there was no mutual intent about payments amounting to $4,962.95 which were made to the child direct or used to purchase laptop computers. The payments were not made directly to the First Respondent and two of the payments were for laptop computers. The Tribunal remarked that she had no discretion on how the payments should be spent.
The Tribunal stated:
It is clear from Mr Schmidt’s evidence that he was aware there was a child support case registered with the Agency and that he had child support assessments made and that he was required to make payments to the Agency. Mr Schmidt chose not to keep the Agency informed of his whereabouts when he left Australia and therefore he knew that he would not be able to receive details of his liability. Mr Schmidt also chose to send money directly to his daughter despite being aware that the child support case was registered as an ‘Agency collect’ case…There is therefore some doubt that Mr Schmidt himself intended the payments to be in complete or partial satisfaction of an amount payable under an enforceable maintenance liability.[11]
[11] Tribunal decision page 10 paragraph [60]
The Tribunal went on to state at [62] and [63]
After considering the evidence I have found that there was no agreement by Ms Geller that the payments were paid in complete or partial satisfaction of an amount payable under the liability in relation to the child support enforcement period.
I am therefore not satisfied the payments were intended by both parties to be paid in complete or partial satisfaction of an amount under an enforceable maintenance liability.[12]
[12] Ibid at [62]-[63]
The Tribunal set aside the decision under review and substituted a decision that none of the payments claimed should be credited as a non agency payment against the Appellant’s maintenance liability.
The Appeal against the SSAT decision
On 20th December 2011 the Appellant filed an Appeal against the Tribunal’s decision, supported by an affidavit filed three days later. He filed an Amended Notice of Appeal on 18th January 2012 and a 2nd Amended Notice of Appeal on 21st February 2012.
The Child Support Registrar filed a Notice of Address for Service on 12th March 2012.
On 23rd March 2012 the Appellant filed a 3rd Amended Notice of Appeal, upon which he proceeded. At the same time the Appellant filed an Application in a Case seeking a copy of the compact disc recording the Tribunal hearing.
The First Respondent filed a Notice of Address for Service on 12th June 2012.
Evidence and Submissions
The Appellant relied on his affidavits of 6th February and 5th June 2012. He also filed a submission headed Response to the Outline of Submissions of the Second Respondent.
The Second Respondent filed an Outline of Submissions.
The First Respondent did not file a written submission.
The Appellant, in both his oral submission on the day of the hearing and in his written submission submitted that the Tribunal had erred in law by failing to have regard to the provisions of ss.39 and 104 of the Family Law Act. He also referred to s.103T of the Child Support (Registration and Collection) Act.
The Appellant submitted that the First Respondent had presented affidavits to the Tribunal of which he had not received copies. He said he was deprived of the opportunity of bringing to the Tribunal’s attention all of the events that had happened in the High Court proceedings in England. He further submitted that the Tribunal only considered the First Respondent’s affidavits and not his.
It was also submitted that the Tribunal had failed to make its own independent inquiries from the English Courts to draw a conclusion based on the facts and applicable laws.
His argument before the Tribunal had been that the issues between the First Respondent and himself had already been resolved in the High Court proceedings.
In his written submission, the Appellant stressed the applicability of sections 39 and 104 of the Family Law Act, which the Tribunal had not considered. It had also failed to consider relevant case law, being Voth v Manildra Flour Mills[13], Henry v Henry[14] and CSR v Cigna Insurance.[15]
[13] (1990) 171 CLR 538
[14] (1996) 185 CLR 571
[15] (1997) 189 CLR 345
The Appellant further submitted that there was strong evidence that both the Child Support Agency and the First Respondent had deliberately acted in a vexatious manner since 1996 to circumvent the applicable laws both in Australia and England. This included:
·Failure to ensure that applicable laws were considered when he presented evidence in 1997 to the Child Support Agency that this matter had already been resolved in the UK courts
·The First Respondent’s actions in applying for an administrative assessment of child support in 1997 despite a decision having already been made in England in 1995
·The Child Support Agency’s failing to act by ignoring all subsequent instances when this state of affairs was brought to their attention from 1997 until 2011
·Distortion of the transcript of the SSAT hearing of 2nd November 2011 so that his comments were not recorded or were ignored.
The solicitor for the Second Respondent Child Support Registrar, Ms Bell, submitted that the only right of appeal afforded to the Appellant is under s.110B of the Child Support (Registration and Collection) Act and is limited to an appeal on a question of law. Section 110B is in almost identical terms to sub-section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (see LDME & JMA (SSAT Appeal)[16] per Halligan FM at [21]).
[16] [2007] FMCAfam 712; (2007) FLC 98-034
It was further submitted that an appeal “on a question of law” is more limited in scope than an appeal which involves a question of law (see Hussain v Minister for Foreign Affairs[17] at [31]). Where an appeal lies on a question of law, the subject matter of the appeal is the question or questions of law.
[17] (2008) 169 FCR 24
Ms Bell also submitted that for a party simply to assert that a tribunal has erred in law in making a particular finding is not to state a question of law (see Birdseye v Australian Securities and Investments Commission[18] per Branson and Stone JJ at [13]-[15]). The particular question of law which is said to arise from the decision of a tribunal must be “stated with precision as a pure question of law.”[19] As Halligan FM said in LDME & JMA (SSAT Appeal)[20]:
The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question…The Grounds of Appeal called for in the Notice of Appeal assume the provisions of s. 110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.[21]
[18] (2003) 76 ALD 321
[19] (2003) 76 ALD 321 at [18]
[20] supra
[21] [2007] FMCAfam 712 at [29]
Ms Bell submitted that the Appellant has sought to file a mixture of evidence by way of affidavit and successfully objected to the admission of various sections of the Appellant’s affidavits. Appeals from the SSAT to this Court are such that the jurisdiction of the Court does not permit the reception of further evidence that was not before the Tribunal (see Servos v Repatriation Commission[22] per Spender J at 385; see also Clements v Independent Indigenous Advisory Committee[23] per Gyles J at [64]-[65]; Phillips v Commissioner for Superannuation[24] per Spender, Madgwick and Finkelstein JJ at [31]).
[22] (1995) 56 FCR 377
[23] [2003] FCAFC 143
[24] [2005] FCAFC 2
It was submitted that the Appellant’s grounds of appeal did not disclose any error of law. It is only in Grounds 1 and 6 that he claims an error of law, namely denial of procedural fairness.
The Child Support Registrar disagrees with the Appellant’s claim that he was not given an opportunity to review and comment on evidence by the First Respondent. Ms Bell noted that the Tribunal had adjourned the hearing to obtain further information from the Child Support Agency and to allow the parties to produce further information. The Tribunal stated that it had provided this information to the parties on 9th November 2011 for comment but did not receive a response.
It was submitted that the Appellant received correspondence from the Child Support Agency and the Tribunal, including the Tribunal decision, so it is difficult to accept that he failed to receive the other documents. Thus, it was submitted that the Court should not accept that the Appellant did not have an opportunity to consider and respond to the contents of the documents.
The critical question is whether the Appellant was denied the opportunity to read and comment on documents relied on by the Tribunal in making its decision (see Repatriation Commission v Farley-Smith[25] at 54). The submission is that the Appellant attended the hearing and was given the opportunity to present his evidence which was, in part, wholly accepted by the Tribunal.
[25] (2007) 96 ALD 348
As to the Appellant’s Ground 2, a claim that the SSAT improperly considered evidence before it, it was submitted that this is not a question of law at all. Whether a Tribunal has failed to give proper consideration to the evidence, attached undue or excessive weight to a particular piece of evidence or whether the evidence before the Tribunal was capable of supporting the Tribunal’s conclusion are not questions of law (see Hartnett v Migration Agents Registration Authority[26] per Marshall J at [50]; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd[27] per Branson J at [46]). These, it is submitted, are questions of fact.
[26] [2004] FCA 50
[27] (2003) 47 ACSR 649
For the Court to question the SSAT’s assessment of the evidence and the weight given to it would lead it to “trespass into the forbidden field of review on the merits”.[28]
[28] Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 391
It was submitted that the Appellant’s third ground of appeal again is a challenge to the Tribunal’s findings of fact and reiterates a claim of a denial or procedural fairness.
The Child Support Registrar submitted that the Appellant’s fourth ground of appeal seeks to raise irrelevant matters outside the scope of a hearing on a question of law. Ground 4, it is submitted, does not disclose any question of law to which the Child Support Registrar can respond.
It is submitted on behalf of the Child Support Registrar that the Appellant’s fifth ground appears to assert that the Tribunal reached its conclusion in the absence of evidence and that the Tribunal failed to properly consider the issue of direct payments. Whilst it was conceded that a submission that there was no evidence to support a particular finding of fact is a question of law, in case it is submitted that there was evidence upon which the Tribunal was able to support its findings. That evidence, it is submitted, is set out in paragraphs [51] to [56].
Ms Bell submitted for the Child Support Registrar that in order to demonstrate an error of law, the Appellant would have to show that there was no evidence before the Tribunal to support a particular finding of fact (see Comcare Australia v Lees[29] at 652-653; Australian Broadcasting Tribunal v Bond[30] at 335-336).
[29] (1997) 151 ALR 647
[30] (1990) 170 CLR 321
It was submitted that the Tribunal had made a finding of fact and correctly applied section 71 of the Child Support (Registration and Collection) Act (see Whipp & Richards[31] at [200]). Thus, no error of law can be made out.
[31] [2012] FamCAFC 11
As to the Appellant’s sixth Ground of Appeal, which appears to claim that that the Tribunal made an unreasonable decision and denied him procedural fairness, it was submitted on behalf of the Child Support Registrar that the Appellant is unable to establish either unreasonableness or a denial of procedural fairness.
The Child Support Registrar submitted that there is a very high burden that needs to be met in order to establish that a decision is so unreasonable as to amount to a question of law. The decision must have been one at which no logical, reasonable or rational person could arrive “on the same evidence” (see Minister for Immigration and Citizenship v SZMDS[32] at [129]-[133]).
[32] [2010] HCA 16
As to procedural fairness, it was submitted that the Tribunal afforded both parties the opportunity to provide oral evidence on oath, and further adjourned to allow the parties time to gather and present further material. The submission is that both parties were afforded procedural fairness and the ground is misconceived and must be dismissed.
The Child Support Registrar concluded the submissions by stating:
For these reasons, it is submitted that the appeal ought to be dismissed, without costs.[33]
[33] Outline of Submissions of the Second Respondent page 10 paragraph 56
Conclusions
An appeal to this Court from a decision of the Social Security Appeals Tribunal is an appeal on a question of law. Section 110B of the Child Support (Registration and Collection) Act provides:
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.
Under s.104 of the Act, jurisdiction is conferred on the Family Court, the Federal Magistrates Court, the Family Court of Western Australia and, subject to the condition in subsection (7), the Supreme Court of the Northern Territory.
In Carrigan & Fredericks (SSAT Appeal)[34] at [103], [105], [107] and [108], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature:
[34] [2011] FMCAfam 544
103.It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision…
105.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[35]…
107.In Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd,[36] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“…the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[35] Footnote omitted
[36] (1993) 43 FCR 280
108. 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;[37]
·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 deali9ng 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.’[38]
[37] See LDME & JMA [2007] FMCAfam 712 at paragraph 29
[38] [2011] FMCAfam 544 at [103], [105], [107]-[108]
The Appellant sets out six grounds of appeal in his 3rd Amended Notice of Appeal. However, the case that the Appellant argued was more of a challenge to the making of the administrative assessment at all, on the basis that arrangements had already been made in the High Court in the United Kingdom. This appears to be why he chose to refer the court to the provisions of sections 39 and 104 of the Family Law Act, although it can readily be seen that neither section assists the Appellant.
Section 39 of the Act relates to jurisdiction in matrimonial causes and provides:
39(1)Subject to this Part, a matrimonial cause may be instituted under this Act:
(a) in the Family Court; or
(b) in the Supreme Court of a State or a Territory.
39(1A)Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1) may be instituted under this Act in the Federal Magistrates Court.
39(2)Subject to this Part, a matrimonial cause (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1) may be instituted under this Act in a Court of summary jurisdiction of a State or Territory.
39(3)Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:
(a)is an Australian citizen;
(b)is domiciled in Australia; or
(c)is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.
39(4) Proceedings of a kind referred to in the definition of matrimonial cause in subsection 4(1), other than proceedings for a divorce order or proceedings referred to in paragraph (f) of that definition, may be instituted under this Act if:
(a)in the case of proceedings between the parties to a marriage or proceedings of a kind referred to in paragraph (b) of that definition in relation to a marriage – either party to the marriage is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, at the relevant date: and
(b)in any other case – any party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia at the relevant date.
39(4A)In subsection (4), relevant date, in relation to proceedings, means:
(a)if the application instituting the proceedings is filed in a court – the date on which the application is so filed; or
(b)in any other case – the date on which the application instituting the proceeding is made.
39(5) Subject to this Part and to section 111A, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Family Court and on the Supreme Court of each Territory, with respect to matters arising under this Act in respect of which:
(a)matrimonial causes are instituted under this Act; or
(b)matrimonial causes are continued in accordance with section 9; or
(c)(Omitted)
(d)proceedings are instituted under regulations made for the purposes of section 109, 110, 111, 111A or 111B or of paragraph 125(1)(f) or (g) or under Rules of Court made for the purposes of paragraph 123(1)®; or
(da)proceedings are instituted under Division 4 or Part XIIIAA or under regulations made for the purposes of section 111CZ; or
(e)proceedings are instituted under section 117A.
39(5AA)Subject to this Part and to section 111A, the Federal Magistrates Court has, and is taken always to have had, jurisdiction with respect to matters arising under this Act in respect of which matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act.
39(5A)subject to this Part and to section 111A, the Federal Magistrates Court has jurisdiction with respect to matters arising under this Act in respect of which proceedings are instituted under:
(a)regulations made for the purposes of section 109, 110, 111, 111A or 111B; or
(b)regulations made for the purposes of paragraph 125(1)(f) or (g); or
(c)section 117A; or
(d)proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ.
39(6)Subject to this Part and to section 111A, each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, with respect to matters arising under this Act in respect of which:
(a)matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are instituted under this Act; or
(b)matrimonial causes (other than proceedings of a kind referred to in subparagraph (a)(ii) or paragraph (b) of the definition of matrimonial cause in subsection 4(1)) are continued in accordance with section 9; or
(c)(Omitted)
(d)proceedings are instituted under:
(i)regulations made for the purposes of section 109, 110, 111, 111A or 111B; or
(ii)regulations made for the purpose of paragraph 125(1)(f) or (g); or
(iii)standard Rules of Court made for the purposes of paragraph 123(1)(r); or
(iv)Rules of Court made for the purposes of paragraph 87(1)(j) of the Federal Magistrates Act 1999; or
(da)proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or
(e)proceedings are instituted under section 117A.
39(7)The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.
39(7AAA)Without limiting the generality of subsection (7), a Proclamation under that subsection may be expressed to apply only in relation to one or more of the following:
(a)proceedings of specified classes;
(b)the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory;
(c)the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction constituted in a specified way.
39(7AA) A court of summary jurisdiction in a State or Territory shall not hear or determine proceedings under this Act instituted in or transferred to that court otherwise than in accordance with any Proclamation in force under subsection (7).
39(7A)The Governor-General may, by Proclamation, declare that a Proclamation made under subsection (7) is revoked on and from a specified date and, on and after the specified date, this Act (including subsection (7)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in respect of the jurisdiction of courts before the specified date.
39(8) Jurisdiction with respect to a matter arising under this Act in respect of which a matrimonial cause is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory.
39(9)The jurisdiction conferred on or invested in a court by this section includes jurisdiction with respect to matters arising under any law of the Commonwealth in respect of which proceedings are transferred to that court in accordance with this Act.
As can be seen, Section 39 of the Family Law Act relates entirely to the jurisdiction of this Court and various other courts in respect of matrimonial causes. This is an appeal against a decision of the Social Security Appeals Tribunal relating to matters under the Child Support (Registration and Collection) Act. It is not a proceeding relating to a matrimonial cause. The jurisdiction of this Court to hear appeals from the Social Security Appeals Tribunal is conferred by section 104 of that Act, not by the Family Law Act.
Consequently, the provisions of section 39 of the Family Law Act are entirely irrelevant to the decision under review.
The Appellant has also submitted that section 104 of the Family Law Act is relevant to this matter. It can readily be seen from a reading of the section that it is not relevant at all.
Section 104 relates to the recognition of overseas decrees of divorce, annulment of marriage or legal separation. Essentially, the section provides for:
a)the circumstances in which a divorce or the annulment of a marriage or the legal separation of the parties to a marriage effected in accordance with the law of an overseas jurisdiction shall be recognized as valid in Australia (see subsection 104(3));
b)the circumstances where a divorce or the annulment of a marriage or the legal separation of the parties to a marriage shall not be recognized as valid by virtue of subsection (3) (see subsection 104(4)); and
c)the circumstances in which any divorce or any annulment of marriage or any legal separation of the parties to a marriage that would be recognized as valid under the common law rules of private international law shall be recognized as valid in Australia (see subsection 104(5)).
The submission that in some way the Social Security Appeals Tribunal in some way failed to take into account the provisions of s.104 of the Family Law Act is misconceived. There is no issue in the Appeal proceedings about the recognition or otherwise of the parties’ divorce in the United Kingdom. It is entirely irrelevant to the decision under review.
Similarly, the Appellant’s submission that the decisions of the High Court in Voth v Manildra Flour Mills Pty Ltd[39] and Henry v Henry[40] are in some way applicable is misconceived. Both of these authorities refer to the question of whether an Australian court is a clearly inappropriate forum to deal with the issue.
[39] (1990) 171 CLR 538
[40] (1996) 185 CLR 571
The proceeding before the SSAT was an application for review of the decision of the Child Support Registrar not to credit payments made by the Appellant directly to the First Respondent as payments intended to be made under an enforceable maintenance liability, being an administrative assessment of child support. What the Appellant is now arguing is that there were some orders by way of maintenance made in the High Court of Justice in the United Kingdom and that presumably, the administrative assessment of child support should not have been made at all.
However, that is not the subject matter of the appeal before this Court. What the High Court held in Henry (applying the decision in Voth v Manildra Flour Mills), was that:
a)The test for determining whether a stay of matrimonial proceedings should be granted is whether the Australian court is a clearly inappropriate forum. This requires the court to determine whether the continuation of proceedings in the local court would be oppressive or vexatious;
b)That to apply the test it is relevant to consider whether jurisdiction exists in the courts of another forum to deal with the same matter which is before the Australian court; and
c)Whether Australia is a clearly inappropriate forum will depend on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.[41]
[41] (1996) 185 CLR 571 at 571-572
Quite clearly, the two authorities cited do not apply. The Appellant’s submission misconceives the very nature of the proceedings before the Social Security Appeals Tribunal. The proceedings before the SSAT were administrative proceedings to do with payments of child support under Australian legislation and not court proceedings dealing with a matrimonial cause. No court in the United Kingdom or anywhere else had any jurisdiction to deal with that issue.
It follows that the decision in CSR Ltd v Cigna Insurance Ltd[42] is of no relevance to the decision under review. The Appellant submitted that “vexatiousness is an important consideration in such matters” but no question of vexatiousness applies. The proceeding before the SSAT because the Appellant sought a review of the Child Support Registrar’s decision.
[42] (1997) 189 CLR 345
The Appellant’s argument must fail and the decisions will be distinguished on their facts.
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.
This argument has essentially been dealt with in paragraphs 65 to 77 above, being the challenge to the very making of the administrative assessment of child support.
As has been submitted by the Child Support Registrar, the Appellant is also claiming that the Tribunal failed to give a proper consideration to the evidence before it. This is not a question of law, it is a challenge to the Tribunal’s finding of fact on the evidence before it. The Court does not descend into the area of merits review. As Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[45] at 291:
Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.[46]
[45] (1996) 185 CLR 259
[46] (1996) 185 CLR 259 at 291 (see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36
In my view the Appellant’s second ground amounts to an attempt at merits review and does not disclose an error of law. The Appellant’s second ground of appeal fails.
The Appellant’s third ground of appeal claims:
SSAT failed to define the term “benefit” in its decision paper and also failed to also to record that Ms Geller stated at the hearing on the 2nd November 2011 that she had used some of the payments I made as direct payments, to fund the purchase of a new car. This would imply that Ms Geller (the payee) was fully aware of the availability of my payments for use of our daughter’s upkeep and support. Also by not inviting me to comment upon the outcome of its discussions or hearings it held with the CSA, before finalising its decision, SSAT failed to recognise my right to contradict or present evidence that the CSA was being advised in various calls and emails that I was making such direct payments and the CSA had communicated to me my ongoing assessed liability.
The ground essentially seeks merits review of the Tribunal’s decision, which is not a question of law. As to his claim that he was not given an opportunity to comment on or respond to the material produced by the Child Support Registrar, I have already dealt with this claim at paragraphs 80 and 81 above in dealing with the Appellant’s first ground of appeal.
The Appellant’s third ground of appeal is not made out.
The Appellant’s fourth ground of appeal claims:
SSAT failure to provide me transcript and actual recording of the hearing on the 2nd November also runs counter to me being given a fair opportunity to be given access to all relevant materials which I may use for this appeal and any further legal action I wish to pursue.
This is not a ground of appeal. It does not raise a question of law. The Appellant’s fourth ground of appeal fails.
The Appellant’s fifth ground of appeal claims:
The availability of these bank statements should also support my assertion that the payee was aware, in addition to other evidence, that I, the appellant, was making direct payments under s. 71(1) subject to the questions of my liability on such payments being resolved (i.e. without prejudice).
In my view, this ground amounts to little more than a further attempt at merits review, which is impermissible.
However, the Child Support Registrar speculates that the ground may amount to an assertion that the Tribunal reached its conclusion in the absence of evidence and failed to give proper consideration to the issue of direct payments.
It is clear that making a finding of fact without any evidence is a question of law which, if made out, would amount to jurisdictional error. As Mason CJ (with whom Brennan J agreed) said in Australian Broadcasting Tribunal v Bond:
The question of whether there is any evidence of a particular fact is a question of law…Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law…So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law…[47]
[47] (1990) 170 CLR 321 at 355-356
In this case, the Tribunal decision at pages 8 & 9, paragraphs 51 to 56, shows the evidence upon which the Tribunal relied. I am also of the view that the Tribunal correctly applied s.71 of the Child Support (Registration and Collection) Act in finding at [57], [58] and [62] of the decision that there was no intention by both the payer and the payee that the payments were made in complete or partial satisfaction of a child support amount payable under the liability.
The Appellant’s fifth ground of Appeal fails.
The Appellant’s sixth ground of appeal states:
That my appeal is being necessitated because of errors or omissions by SSAT which resulted in me not getting a fair hearing.
A failure to provide a fair hearing is an error of law, although the Appellant has not provided any particulars of this ground. In his submission he claims that the decision was unreasonable. The Appellant would need to establish that the decision was so unreasonable that it amounted to a question of law. This is more than just showing that the decision was wrong. There is no error of law simply in making a wrong finding of fact (Waterford v The Commonwealth[48] at 77, cited by Mason CJ in Australian Broadcasting Tribunal v Bond[49] at 356).
[48] (1987) 163 CLR 54
[49] supra
To make a finding of unreasonableness sufficient to amount to jurisdictional error, the Court must find that:
…a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it.[50]
[50] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 229-230
The High Court has recently held that it must be shown that the decision must be one at which no logical, reasonable or rational person could arrive on the same evidence (see Minister for Immigration and Citizenship v SZMDS[51] at [129]-[133]).[52]
[51] [2010] HCA 16
[52] This was a decision on appeal from the Federal Court (SZMDS v Minister for Immigration and Citizenship [2009] FCA 210) where the Minister successfully appealed against a decision on appeal by the Federal Court reversing a decision at first instance by this Court (SZMDS v Minister for Immigration & Anor [2008] FMCA 1064).
In this case, the Appellant has failed to establish that the Tribunal’s decision was so unreasonable as to amount to an error of law.
No denial of procedural fairness has been established. Both parties attended the hearing by telephone and gave evidence and made submissions. The Tribunal adjourned the proceedings to allow time for the parties to consider material from the Child Support Registrar and comment upon that material. The fact that neither party chose to do so does not establish that the parties were in some way deprived of a fair hearing.
The Appellant’s sixth ground of appeal fails.
The Appellant has failed to establish any error of law on the part of the Social Security Appeals Tribunal. It follows that the appeal will be dismissed.
The First Respondent was not legally represented in this Appeal. The Second Respondent, the Child Support Registrar, does not seek an order for costs:
…it is submitted that the appeal ought to be dismissed, without costs.[53]
[53] Outline of Submissions of the Second Respondent page 10 at [56]
Consequently, the Court will not make an order for costs.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 July 2012
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