Stark and Sherman and Anor (SSAT Appeal)
[2014] FCCA 685
•11 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STARK & SHERMAN & ANOR (SSAT APPEAL) | [2014] FCCA 685 |
| Catchwords: CHILD SUPPORT – Appeal – Appeal from decision of Social Security Appeals Tribunal – where appeal conceded – where Appellant opposes order remitting the matter to the Social Security Appeals Tribunal to be dealt with according to law – where Appellant seeks that the matter remain in court. |
| Legislation: Child Support (Assessment) Act (Cth) ss.4, 98E, 98R, 112, 116 Child Support (Registration and Collection) Act 1988 (Cth) s.110F |
| Cases cited: Stark & Sherman& Anor (SSAT Appeal) [2012] FMCAfam 1184 Bagala & Bagala [2009] FMCAfam 953 |
| Applicant: | MR STARK |
Respondent: Second Respondent: | MS SHERMAN CHILD SUPPORT REGISTRAR |
| File Number: | SYC 2043 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 11 March 2014 |
| Date of Last Submission: | 11 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Clinch Long Letherbarrow |
| First Respondent: | No appearance |
| Solicitor for the Second Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The appeal against the decision of the Social Security Appeals Tribunal, SSAT, made on 31 May 2013 be allowed.
The appellant file any application in a case seeking a costs order with supporting affidavit and written submissions of no more than three pages in length within 28 days.
The Second Respondent file any affidavit and written submission of no more than three pages in length within a further 28 days.
Any costs application be dealt with on the papers.
This matter is to be remitted to the Social Security Appeals Tribunal for determination according to law.
IT IS NOTED that publication of this judgment under the pseudonym Stark & Sherman & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2043 of 2012
| MR STARK |
Applicant
And
| MS SHERMAN |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
The matter before the Court is an appeal against the decision of the Social Security Appeals Tribunal. It was listed for hearing this afternoon but the Registrar has conceded the appeal.
The First Respondent has elected not to take part in the appeal proceedings. The Court is being asked to make orders by consent, but there is one order relating to the future progress of the matter that is the subject of controversy between the parties.
The orders to be made by consent about which there is no issue are the following:
(1) the appeal against the decision of the Social Security Appeals Tribunal, SSAT, made on 31 May 2013 be allowed;
(3) the appellant file any application in a case seeking a costs order with supporting affidavit and written submissions of no more than three pages in length within 28 days;
(4) the Second Respondent file any affidavit and written submission of no more than three pages in length within a further 28 days; (5) any costs application be dealt with on the papers.
The Court notes the Second Respondent’s concession that the decision of the SSAT is affected by jurisdictional error in that the SSAT failed to act consistently with the finding in Stark & Sherman & Anor (SSAT Appeal) [2012] FMCAfam 1184 that, in this case, the:
Agreement dated 23 October 2002 was irrelevant to the determination of the expectation of the child’s parents as to the child’s education for the purposes of subsection 117(2)(b)(ii) of the Child Support Assessment Act 1989.
The order that is in dispute is proposed Order 2, which says “the matter be remitted to the SSAT for determination according to law”.
The Child Support Registrar seeks that that order should be made, but the appellant does not. The appellant seeks to retain the matter in this court so that he can file a departure application. The reasons given are that the appellant now has little faith in the ability of the Social Security Appeals Tribunal to deal with the matter and has much greater faith in the ability of the Court to deal with the matter in accordance with law.
The appellant’s view is based on the fact that this very appeal arises from a decision of the Tribunal where he has submitted and it is now conceded that the Tribunal fell into error in that it, again, took into account the document which this Court had previously found to be irrelevant.
It is submitted by Mr Dura of counsel who appear for the appellant today that the appellant has no confidence that the Tribunal, if the matter were remitted to the Tribunal again would not again fall into error.
Although, Mr Gouliaditis submits that the note itself to the proposed orders which I have previously read onto the record would be an effective bar to the Tribunal again falling into that sort of an error.
The first consideration that I have is whether the Court has the power under section 110F of the Child Support Registration and Collection Act to proceed in the way sought by the appellant.
In my view, the section does not contemplate a departure from the recognise procedure whereby a court either affirms or sets aside the decision and where the Court has the power to remit the matter to the Tribunal for rehearing. True it is that the Court, under subsection (3), has the power to make findings of fact not inconsistent to the findings made by the Tribunal, but that does not appear to me to apply in this case.
I look also at the provisions of section 116 of the Child Support Assessment Act, which sets out the situation where a party can apply to the court for a departure from the Child Support Assessment. There are merely three separate situations which provides the Court have jurisdiction where the child support registrar has disallowed an objection or the tribunal has refused to make the relevant determination under section 98E or 98R. They don’t apply.
Paragraph 116(1)(b) provides:
A liable parent or carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to court having jurisdiction under this act for an order under this Division in relation to the child and the special circumstances of the case if (b) both of the following apply: (i) the liable parent or carer entitled to child support is party to an application pending in a court having jurisdiction under this Act; (ii) the court is satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child and the special circumstances of the case.
The appellant, and for that matter, the First Respondent are before the Court for what, in effect, will be the finalisation of an appeal. The Court is being asked to keep the matter so that a departure application may be commenced.
The departure application would relate to a period more than 18 months prior to the application being made, which would result in an application being made to the court under section 112 of the Act.
This is a well established procedure and it would certainly be open to the Applicant to seek that. But I have serious doubts as to whether it is the intention of the legislature that an appeal which is effectively being disposed of today should be kept alive purely to provide a vehicle for the bringing of a departure application. To my mind, it would involve the proceedings being kept on foot, disregarding any costs application, virtually under some form of legal life support to provide an avenue for the appellant to bring an application for departure.
And what would the reason be for this departure application to be made? Because the appellant as he is has expressed a lack of confidence in the Social Security Appeals Tribunal and a confidence in the court. Whilst flattering, this does not appear to me to be a reason to permit this departure from the procedures set out by law.
I have also had recourse to the decision of Riethmuller FM as his Honour then was in the decision of Bagala & Bagala [2009] FMCAfam 953. His Honour looked at the legislation, and in particular at paragraphs 20 and 21, his Honour said:
Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the courts, thus avoiding needless expense of the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object and providing an inexpensive administrative system for review of child support assessments.
His Honour then went onto say at paragraph [21]:
The objects and purpose of the child support scheme are to provide an informal and expensive and timely avenue of review for disputing parties.
I am mindful of the fact that the First Respondent, if I acceded to the appellant’s application, would then find herself as the Respondent to proceedings in this Court, which, in my view, would involve her in some time and expense, especially if she was to feel the need for legal representation.
My view is that the policy of the legislature as set out by his Honour in Bagala is that the matter should remain within the child support system unless there are clear circumstances which arise that warrant the matter being heard by a Court. I’m not satisfied that this is such a case. The fact is that the appeal is effectively being disposed of and should be disposed of today.
I propose to make orders 1, 3, 4 and 5 as set out. I propose to note what I consider to be a very clear description of the concession by the Child Support Registrar. My view is that I should follow the scheme in section 110F and I order that this matter is to be remitted to the Social Security Appeals Tribunal for determination according to law.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett.
Date: 7 April 2014
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