Stark & Sherman & Anor (SSAT Appeal)
[2012] FMCAfam 1184
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STARK & SHERMAN & ANOR (SSAT APPEAL) | [2012] FMCAfam 1184 |
| CHILD SUPPORT – APPEAL – Appeal from Decision of Social Security Appeals Tribunal – appeal on a question of law – whether Tribunal relied on irrelevant consideration – whether Tribunal made factual findings in the absence of evidence – merits review – error of law – jurisdictional error – decision remitted to the Tribunal. COSTS – Whether an order for costs should be made – where Second Respondent submitted that appeal should be dismissed without costs. |
| Child Support (Assessment) Act 1989 (Cth) ss.80C, 81, 117 Child Support (Registration and Collection) Act 1988 (Cth), ss.104, 110B Victorian Civil and Administrative Tribunal 1998 (Vic) s.148 |
| Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321; [2003] FCAFC 232 Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 Kelly & Marlowe & Anor (SSAT Appeal) [2011] FMCAfam 1162; (2012) FLC 98-060 Kindree & Child Support Registrar & Anor (SSAT Appeal) [2010] FMCAfam 357; (2010) FLC 98-052 LDME & JMA (SSAT Appeal) (2007) 38 Fam LR 132; FLC 98-034; [2007] FMCAfam 712 Mee v Ferguson (1986) FLC 91-716 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72 Schmidt & Geller (SSAT Appeal) [2012] FMCAfam 735 Wild and Ballard [1997] FamCA 41 |
| Applicant: | MR STARK |
| First Respondent: | MS SHERMAN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 2043 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 October 2012 |
| Date of Last Submission: | 9 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Clinch Long Letherbarrow |
| The First Respondent: | No Appearance |
| Solicitors for the Second Respondents: | Program Litigation & review Branch, Department of Human Services |
ORDERS
The Appeal against the decision of the Social Security Appeals Tribunal made on 28 February 2012 and despatched on 9 March 2012 is allowed.
The matter is remitted to the Social Security Appeals Tribunal for determination according to law.
Written submissions in support of any application for costs are to be filed and served within 14 days and written submissions in opposition to any such claim are to be filed and served within 21 days.
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 MAGISTRATES 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
Appeal
This is an Appeal from a decision of the Social Security Appeals Tribunal (SSAT) made on 28 February 2012 and despatched on 9 March 2012. The Tribunal set aside a decision of the Child Support Agency made on 8 November 2011 and substituted a new decision that the annual rate of child support payable by the Appellant be increased by $11,492.00 for the period 1 January 2012 to 31 December 2012.
By his Amended Notice of Appeal filed on 7 June 2012 the Appellant seeks the following Orders:
1. That the decision of the Social Security Appeals Tribunal dated 9 March 2012 be set aside.
2. That the decision of the Social Security Appeals Tribunal dated 9 March 2012 be stayed pending final hearing of this matter.
3. That pursuant to section 117 of the Child Support (Assessment) Act 1989 child support payable by Mr Stark to Ms Sherman for the child [X] born [in] 1998 shall be in accordance with the child support assessment dated 1 January 2010.
4. (a) That the Deed dated 23 October 2002 be set aside; or
(b) (i) A declaration that the Deed dated 23 October 2002 does not bind the parties and had not been binding as and from the date of execution; or in the alternative
(ii) A declaration that the Deed dated 23 October 2002 does not bind the parties and has not been binding as and from May 2005.
The Appellant relies on the following grounds of appeal:
1. That the SSAT erred in law by not establishing that special circumstances existed to depart from the administrative assessment on the basis of their finding in relation to the costs of maintaining the child.
2. That the SSAT erred in law by taking into consideration a redundant deed when determining the expectation of the parents in accordance with s. 117(2)(b)(ii) of the Child Support (Assessment) Act 1989.
3. That the SSAT erred in law by finding that Ms Sherman spends 4 hours per day attending to [X]’s needs and on that basis finding that it is just and equitable to depart from the administrative assessment.
Background
The Appellant’s counsel, Mr Dura, provided a detailed chronology in his written submission, which has been useful to the Court in setting out the relevant history.
The Appellant and the First Respondent were married [in] 1990. There is one child of the marriage, the parties’ son [X], who was born [in] 1998.
The parties separated in January 2000. The child remained living with his mother.
In June 2000 the Appellant commenced parenting and property proceedings in the Family Court of Australia at Sydney. On 23 October 2001 the parties entered into Consent Orders finalising the parenting and property issues between them.
On 23 October 2002, the parties entered into an agreement, described as a “Deed”, relating to child support for their son.
On 26 May 2005 the Child Support Agency issued a Child Support Assessment to the Appellant. The Assessment was as follows:
a)12 May to 18 May 2005 at a monthly amount of $1,759.58;
b)19 May to 25 May 2005 at a monthly amount of $1,368.58; and
c)26 May 2005 to 11 August 2006 at a monthly amount of Nil.[1]
[1] Affidavit of Mr Stark 6.6.2012 Annexure “B”
The First Respondent relocated to the NSW Central Coast with the child.
The Appellant lodged an application for a change of assessment of child support with the Child Support Agency. The First Respondent also applied for a change of assessment.
On 28 June 2011 the Agency made a decision increasing the annual rate of child support payable by the Appellant by the amount of $6,148.00 for the period 14 April 2011 to 13 April 2012.
On 21 August 2011 the Child Support Agency advised the Appellant that a change had been made to his child support obligation. A new child support assessment issued.
The Appellant, through his then solicitors, objected to the decision made on 23 June 2011. Included in the solicitors’ letter was a copy of the Consent Orders made in the Family Court on 23 October 2001.
On 8 November 2011 the Child Support Agency made its decision on the objection. Although the objection was allowed in part, but the annual rate of child support payable by the Appellant for the period 1 January to 31 December 2012 was increased by $7,437.00.
The Appellant then applied to the Social Security Appeals Tribunal for a review of the decision.
The application for review was heard on 10 February 2012. Both the Appellant and the First Respondent attended but there was no appearance on behalf of the Child Support Registrar.
The Tribunal made its decision on 28 February 2012, setting aside the decision under review and substituting a new decision that the annual rate of child support payable by the Appellant be increased by $11,492.00 for the period 1 January to 31 December 2012.
On 10 April 2012 the Appellant filed a Notice of Appeal against the Tribunal decision, accompanied by a Financial Statement. The Notice of Appeal was returnable on 12 June 2012.
The Appellant filed an Amended Notice of Appeal on 7 June 2012 along with an affidavit made the day before.
On the return date, the Court made directions for the service of affidavits and written submissions and stayed the decision of the Tribunal until further order.
Submissions
Counsel for the Appellant, Mr Dura, submitted that the issues central to the dispute relate to the manner in which the Child Support Agency and the Social Security Appeals Tribunal treated the Orders entered into by Consent between the parties on 23 October 2001 and the Deed entered into between the parties on the same date.
Mr Dura submitted that there was no doubt that the Tribunal relied on the Consent Orders and the Deed.
In upholding the contention of the First Respondent that the costs of maintaining the parties’ child was significantly affected because of his private school education, the Tribunal relied on the Consent Orders and the deed to find that there was a mutual intent that the child should be privately educated.
It was further submitted that at the heart of the dispute between the parties before the Tribunal was the validity of the Deed in circumstances where each of the parties had agreed that there had been no compliance with the terms of the Deed since shortly after it was created.
The Consent Orders related to parenting, property and spousal maintenance. The Deed entered into between the parties was a document that:
a)Determined the amount of “maintenance” the Appellant would pay to the Respondent for the benefit of their child;
b)Stated that the appellant would be responsible for the child’s school fees at [K] School from Year 7, if he so attended or such other school as they may agree; and
c)Prevented the Appellant from seeking a variation of the Deed following the birth of a relevant dependant child.
It was submitted that the Tribunal fell into error in making a finding that the deed contained “orders” and it was not a document upon which either of the parties could rely or enforce given their conduct following the creation of the deed.
It was further submitted that the liability of the Appellant in relation to the child’s school fees only arose in the circumstances that:
a)the child attended The [K] School from Year 7; or
b)there was agreement between the parties that the child would attend another school.
Mr Dura submitted that:
a)because neither of the above conditions imposed on the parties by the Deed were met, no liability arises for the payment of school fees at [C] School (see Kelly & Marlowe (SSAT Appeal)[2]);
b)the Tribunal erred in finding that the [C] School provided a similar type of education to that provided by The [K] School as there was no evidence presented to the Tribunal to allow such a finding to be made (Kindree & Child Support Registrar & Anor (SSAT Appeal)[3] ;
c)as it was clear on the evidence and unchallenged by the First Respondent that the Appellant did not agree to the child attending [C] School, absent some evidence that the child’s welfare dictated his attendance at the school no liability on the part of the Appellant for the fees should arise (see Mee v Ferguson[4]; Wild and Ballard[5]).
[2] [2011] FMCAfam 1162; (2012) FLC 98-060
[3] [2010] FMCAfam 357; (2010) FLC 98-052
[4] (1986) FLC 91-716
[5] [1997] FamCA 41
Counsel for the Appellant also referred the Court to the recent decision of mine in Schmidt & Geller & Anor (SSAT Appeal)[6], at [62]-[64]. In that decision I held at [62] and [63] that:
a)An appeal to this Court from a decision of the Social Security Appeal Tribunal is an appeal on a question of law (Child Support (Registration and Collection) Act 1988, s.110B); and
b)Jurisdiction is conferred on the Family Court, the Federal Magistrates Court and other courts (s.104).
[6] [2012] FMCAfam 735
In that same decision, at [64], I referred with approval to the summary of the principles to be followed in considering an appeal of this nature set out by Brown FM in Carrigan & Fredericks (SSAT Appeal)[7] at paragraphs [103], [107] and [108] of his Honour’s decision.
[7] [2011] FMCAfam 544
In summary, the Appellant submits that the Tribunal erred in law in making seven factual findings in the absence of evidence to support those findings.
In a Written Outline of Submissions of the Second Respondent, the Child Support Registrar, Ms Bell, solicitor, submitted that the right of appeal under s.110B of the Act is limited to an appeal “on a question of law”. 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[8] at [31] per Weinberg, Bennett and Edmonds JJ). Where an appeal lies on a question of law, the subject matter of the appeal is the question or questions of law. 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 (Birdseye v Australian Securities and Investments Commission[9] at [13]-[15 per Branson and Stone JJ; see also LDME & JMA (SSAT Appeal)[10] per Halligan FM at [29]).
[8] (2008) 169 FCR 241
[9] (2003) 76 ALD 321; [2003] FCAFC 232
[10] (2007) 38 Fam LR 132; FLC 98-034; [2007] FMCAfam 712
The Child Support Registrar submitted that the Appellant’s first ground of appeal appears to be misconceived, in that the ground asserts that the Tribunal erred by not establishing that special circumstances existed to depart from the assessment, when in fact the Tribunal had found that there were special circumstances, at paragraph [37] of the decision. The Registrar submits that there was evidence, which the Tribunal set out at paragraphs [31] to [36], of the decision.
As to the Appellant’s second ground of appeal, the Registrar did not agree that the Tribunal had erred in relying on the child support agreement between the parties to make a finding of fact that the child was to be privately educated. It was submitted that the Tribunal, at paragraph [35] of the decision, correctly applied Wild and Ballard[11] and found that it was to consider the type of education expected by the parents and not the particular school.
[11] supra
In contrast to the Appellant’s submission, on the authority of Kelly & Marlowe[12] that the parties’ intention for the child to attend a private school was conditional on his attending The [K] School, Ms Bell submitted that the transcript of the evidence before the Tribunal showed that the Appellant had enrolled the child at [S] School when he was a toddler.[13]
[12] supra
[13] Transcript page 40, lines 23-45, page 41, 1-9
The Registrar submits that the characterisation by the Tribunal of the terms of the deed as “orders” is not a fatal error. Whilst at paragraph [36] the Tribunal characterised the deed as “Court orders” and went on to note that the “Court Orders show that there is mutual intention that he be educated privately”. It is submitted that the material finding of fact is not that they are Court Orders but that there was an intention by the parties “crystallized in the terms of the document”.
The Registrar submits that the Appellant’s third ground of appeal, that it was not open to the Tribunal to find that the First Respondent cared for the child for approximately four hours each day is not a question of law but a question of fact. The Tribunal accepted the First Respondent’s evidence that she receives a government tested carer’s allowance for the care she provides to the child. Thus, it was reasonably open to the Tribunal to make a finding of fact as to the hours of care the Respondent provides for the child.
The Relevant Law
An appeal to this Court from a decision of the Social Security Appeals Tribunal is an appeal on a question of law (Child Support (Registration and Collection) Act 1989, s.110B). Under s.104 of the Act, jurisdiction is conferred on the Federal Magistrates Court, the Family Court of Australia, the Family Court of Western Australia and, in certain circumstances, the Supreme Court of the Northern Territory.
In LDME & JMA (SSAT Appeal)[14] at [22], Halligan FM stated that the term “appeal” is potentially confusing, as the proceedings are within the original jurisdiction of the court hearing them (see Drake v Minister for Immigration and Ethnic Affairs[15] at 581).
[14] supra
[15] (1979) 24 ALR 577
The High Court has considered similar wording to s.110B in s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VACT Act), in Osland v Secretary, Department of Justice[16]where French CJ, Gummow and Bell JJ (applying Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[17] at [79]), held at [17]:
[16] (2010) 241 CLR 320
[17] (2001) 207 CLR 72
It is necessary to refer to the nature of the jurisdiction and powers of the Court of Appeal in an appeal from an order of the Tribunal…The relevant jurisdiction and powers are set out in s. 148 of the VCAT Act, which provides, inter alia:
“Appeals from the Tribunal
(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding…”[18]
[18] (2010) 241 CLR 320 at 331 [17] per French CJ, Gummow and Bell JJ
Their Honours went on to hold:
Section 148 confers “judicial power to examine for legal error what has been done in an administrative tribunal”.[19] Despite the description of proceedings under the section as an “appeal”, it confers original not appellate jurisdiction: the proceedings are “in the nature of judicial review”.[20]
[19] Footnotes omitted
[20] (2010) 241 CLR 320 at 331-332 [18]
Halligan FM similarly held in LDME at [22] that the proceedings are within the original jurisdiction of the court hearing them.
In Carrigan & Fredericks (SSAT Appeal)[21] at [103], [105] and [108], Brown FM provides a succinct summary of the principles to be followed in considering an appeal of this nature:
[21] supra
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[22]…
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;[23]
·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 dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in review 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’.[24]
[22] Footnote omitted
[23] See LDME & JMA (SSAT Appeal) at [29]
[24] [2011] FMCAfam 544 at [103], [105] and [108]
Conclusions
The Appellant’s first ground of appeal in the Amended Notice of Appeal is that the Tribunal erred in law by not establishing that special circumstances existed to depart from the administrative assessment on the basis of their (sic) finding in relation to the costs of maintaining the child.
The Tribunal’s task to which this ground of appeal relates was to determine whether the First Respondent had established that a ground for departure from administrative assessment of child support existed where the costs of maintaining the child are significantly affected because he is being cared for, educated or trained in the manner intended by his parents. The relevant subparagraph of the Child Support (Assessment) Act is subparagraph 117(2)(b)(ii), which provides:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
…(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
Here, the Tribunal sets out at paragraph [30] what it considered to be the nature of the task in deciding whether a ground for departure under subparagraph 117(2)(b)(ii) had been made out by the First Respondent.
Then, the Tribunal sets out at paragraphs [31] to [36] inclusive the evidence upon which it relied in order to make its findings. At paragraph [37] of the decision, the Tribunal stated:
The Tribunal finds that the costs of private education are significant and do significantly affect the costs of maintaining [X]. On this basis, Reason 3 is established. The issue of what amendment to the assessment ought to be made to take account of those costs (if any) will be considered later in this decision.
In my view, the Tribunal understood the requirement to find special circumstances under subparagraph 117(2)(b)(ii) by specifically referring to it in paragraph [30]. Whilst the Tribunal’s finding at paragraph [37] does not specifically refer to special circumstances per se, it is clear from the context that the Tribunal fully intended to find that special circumstances existed for that reason.
The Tribunal referred in paragraphs [31] to [36] to the evidence upon which it relied to come to its conclusion. It is not open to this Court on judicial review to consider the merits of the evidence upon which the Tribunal relied. It is sufficient that there is evidence upon which the Tribunal was able to make its finding. What weight the Tribunal gave to the evidence was entirely a matter for the Tribunal, and it does not matter that the Court may have taken a different view of the evidence.
The Appellant’s first ground of appeal has not been made out.
The Appellant’s second ground of appeal is that the Tribunal erred in law by taking into consideration a redundant deed when determining the expectation of the parties in accordance with s.117(2)(b)(ii) of the Child Support (Assessment) Act.
The error of law that is being contended is that of taking an irrelevant consideration into account.
The document referred to is a document entitled “Deed” that bears the date 23 October 2002. Curiously, the document is dated exactly a year after the date of the Consent Orders made in the Family Court. A copy of that document forms Annexure “N” to the affidavit of the Appellant of 6 June 2012.
In the preamble, the deed states that:
a)There is one child of the marriage;
b)The child is an eligible child under the provisions of the Child Support (Assessment) Act 1989;
c)The Appellant is a liable parent; and
d)The First Respondent is entitled to child support.
The preamble goes on to say:
G. This Agreement is intended by the parties to constitute a Child Support Agreement pursuant to Section 84 of the Act.
H. The child support payable by the husband under the provisions of this Agreement is to be credited against the husband’s liability under any existing or future administrative assessment and is intended to constitute all of the annual rate of child support payable under any relevant administrative assessment made pursuant to the Act.
I. It has been agreed by the husband and the wife that this Agreement shall be registered with the Child Support Agency.
The operative parts of the Agreement state:
1. The husband pay direct to the wife maintenance for [X] in the sum of $350.00 per week. Such payment to commence from the date hereof.
2. The husband pay private health insurance for [X] at the present level of cover and any difference in health care costs over and above the insurance level and Medicare rebate. In the even that such insurance does not cover [X] for physiotherapy, speech therapy and/or occupational therapy at the [omitted] Children’s Hospital then the husband is to pay the same but only as recommended by the [omitted] Children’s Hospital.
3. That the husband pay the private school tuition fees and costs for [X], if he so attends, from Year 7 until the child leaves school at the [K] School or such other school as they may agree, such fees & costs to include school uniforms books material & (handwritten and illegible) as required by the school.
4. The husband pay for [X] to attend the indoor programme known as “[omitted]” for one hour on each Thursday and one [omitted] lesson each week [omitted] until the child attains school age.
5. That the maintenance to be paid to the wife pursuant to clause 1 of this Agreement be varied each year on and from the instalment of maintenance next day after 1 July of each year (the first such adjustment to occur after 1 July 1993[25]) in accordance with the variation in the Consumer Price Index (All Groups) for Sydney as published by the Australian Bureau of Statistics as it stands on 30 June of each year of each index compared with the same index as at 30 June of the previous year.
[25] sic
6. NOTATION: It is agreed that:-
(The next three lines, which are handwritten, are illegible on the copy of the document annexed to the affidavit).
Significantly, there is no acknowledgment in the document that the parties had been provided with independent legal advice.
Section 80C of the Child Support (Assessment) Act sets out the requirements for an agreement to be a binding child support agreement. Essentially, the agreement is a binding child support agreement if:
a)it is binding on the parties in accordance with subsection (2) of section 80C; and
b)the agreement complies with subsection 81(2).
Subsection 80C(2) contains the following mandatory requirements:
a)the agreement must be in writing;
b)the agreement must be signed by the parties;
c)the agreement must contain a statement that each party has been provided with independent legal advice from a legal practitioner as to:
i)the effect of the agreement on the rights of that party; and
ii)the advantages and disadvantages to the party of making the agreement;
d)the annexure to the agreement must contain a certificate signed by the person providing the independent legal advice stating that the advice was provided;
e)the agreement has not been terminated under s.80D; and
f)the original or a copy of the agreement was given to each party.
Subsection 81(2) provides that the agreement is a binding child support agreement if it complies with the requirements of:
a)section 82, setting out the child or children to whom the agreement relates;
b)section 83, setting out who may be parties to the agreement; and
c)section 84, setting out the provisions that may be included in agreements.
These sections were added to the Act in 2006, well after the parties entered into the agreement. Whilst the agreement between the parties appears to comply with subsection 81(2) of the Act, it is clear that it does not comply with the requirements of subsection 80C(2), specifically paragraphs (c) and (d), relating to the provision of independent legal advice to the parties.
It is a mandatory requirement, “if and only if”, that the agreement must contain a statement that the parties received independent legal advice (s.80C(2)(c)) and a certificate by each of the legal practitioners who provided that advice is annexed to the agreement (s.80C(2)(d)).
As the requirements of s.80C(2)(c) and (d) have not been complied with, the agreement cannot be a binding child support agreement under the Child Support (Assessment) Act.
It was put to the Court by Mr Dura, for the Appellant, without demur from the solicitor for the Child Support Registrar, that the agreement was never registered with the Child Support Agency, despite the agreement to do so recorded in paragraph I of the preamble to the agreement.
It is clear that in about May 2005 the First Respondent applied to the Child Support Agency for an administrative assessment of child support. The Agency wrote to the Appellant on 26 May 2005 advising (inter alia):
We have received an application from Ms Sherman asking us to calculate your child support. We have accepted this application and have enclosed a summary of your assessment…[26]
[26] Affidavit of Mr Stark 6.6.2012 Annexure “B”
An Assessment of child support issued that same day.
At the Tribunal hearing, the First Respondent relied on the agreement together with the Consent Orders[27]. The Appellant objected to the use of the agreement, as the Tribunal records:
Mr Stark indicated that all the terms of that deed have been breached and it has no practical or legal force. He was forced into signing this agreement and he cannot be bound by something that he signed over 10 years ago as his circumstances have changed.[28]
[27] SSAT Decision paragraph [31]
[28] Ibid at [34]
Whether or not the Appellant was “forced into signing” the agreement, and there is no evidence that he was, it is clear that the First Respondent had chosen not to rely on it previously. The agreement was never registered with the Child Support Agency. The First Respondent apparently never sought to enforce the agreement and, by applying to the Child Support Agency for an administrative assessment of child support in May 2005 she can be taken to have abandoned the document. The Appellant did not oppose the making of an administrative assessment of child support by claiming that the parties’ child support status was governed by the agreement.
Both parties appear to have ignored the document.
As counsel for the Appellant submitted, the First Respondent “cannot have it both ways”. She can hardly rely on an agreement that she abandoned in May 2005, when she chose to apply for an administrative assessment of child support rather than enforce the child support provisions in the agreement, in support of an application for departure from an administrative assessment in February 2012.
The First Respondent has chosen not to participate in the proceedings and has offered no evidence to contradict the Appellant’s claims.
In short, the Agreement dated 23 October 2002 was irrelevant to the matter and the Tribunal fell into error in relying upon it. The Tribunal placed considerable weight on the agreement in making its decision.
Relying on irrelevant material is an error of law amounting to jurisdictional error[29].
[29] Carrigan & Fredericks (SSAT Appeal) at [105]
The Appellant’s second ground of appeal has been made out.
The Appellant’s third ground of appeal claims:
That the SSAT erred in law by finding that Ms Sherman spends 4 hours per day attending to [X]’s needs and on that basis finding that it is just and equitable to depart from the administrative assessment.
The very wording of the ground indicates that the Court is being asked to embark on impermissible merits review. Simply asserting that the Tribunal erred is not to state a question of law. In Birdseye v Australian Securities and Investments Commission[30] , Branson and Stone JJ at [14] referred with approval to the decision of Ryan J in Australian Telecommunications Corporation v Lambroglou[31], where his Honour held at 524 “that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law”.
[30] Supra
[31] (1990) 12 AAR 515
The Tribunal found that the First Respondent spends approximately four hours per day attending to the child’s special needs. Providing that there is evidence upon which the Tribunal was able to rely to support this contention, it is not open to the Court to question the Tribunal’s assessment of the evidence and the weight given to it, as this would amount to merits review (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs[32] at 391).
[32] (1989) 169 CLR 379 per Mason CJ at 391
The Tribunal set out the evidence upon which it relied to make that finding in paragraph [42] of its Reasons for Decision. Accordingly, this finding is not open to challenge on judicial review.
The Appellant’s third ground of review has not been made out.
The fact that the Appellant’s second ground of appeal has been successful requires that the matter should be remitted to the Social Security Appeals Tribunal for determination.
The Court will hear any submissions as to costs, noting that the Child Support Registrar has already submitted that the appeal should be dismissed, with no order as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 13 November 2012
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