Tekosis and Tekosis (SSAT Appeal)
[2010] FMCAfam 1213
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TEKOSIS & TEKOSIS (SSAT APPEAL) | [2010] FMCAfam 1213 |
| CHILD SUPPORT – Appeal. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988, ss.71 |
| Appellant: | MS TEKOSIS |
| Respondent: | MR TEKOSIS |
| File Number: | DGC 1208 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 October 2010 |
| Date of Last Submission: | 25 October 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 8 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | The Appellant appearing in person |
| Counsel for the Respondent: | There was no appearance by or on behalf of the Respondent. |
ORDERS
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Tekosis & Tekosis (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 1208 of 2010
| MS TEKOSIS |
Applicant
And
| MR TEKOSIS |
Respondent
REASONS FOR JUDGMENT
When the matter proceeded to hearing, the respondent was telephoned on the number that he provided. However, the telephone call and service went straight through to voicemail. My Deputy Associate left a message on his telephone. The respondent was called three times and he did not appear, either in person or by telephone link. I proceeded to hear the appeal in his absence. The appeal is against the decision of the Social Security Appeals Tribunal (‘SSAT’) made on 22 June 2010.
The issue in the appeal was whether there were child support arrears for the period of three months leading up to the date that the appellant sought to have the agency collect child support on her behalf. The Child Support Agency (‘CSA’) accepted her application for the agency to collect on her behalf on 26 October 2009. Under the relevant provisions of the Child Support (Registration and Collection) Act 1988, the CSA were able to backdate the collection period by three months, to collect any outstanding child support in that three month period. This is discussed at paragraph 18 of the SSAT’s decision.
The parties had an agreement, whereby the respondent paid the appellant $400 to $500 per week (except for a two week period). The appellant used this source to meet various debts, such as mortgage payments and other bills, and then utilised the balance as child support. The central question was how the payments ought to be characterised, not whether the payments were, in fact, made.
The SSAT outlines, at paragraphs 23 and 24, the appellant’s evidence and position. The evidence and position of the respondent is neatly summarised at paragraphs 21 to 22 as follows:
[21] [The respondent] advised the Tribunal that he and [the appellant] had a private agreement for child support that had been in place since January 2009. [The respondent] said the agreement from June 2009 was that he would pay [the appellant] $500 per week and from this [the appellant] would pay his half of the house mortgage and the remainder of the funds were for child support. [The respondent] said it was an explicit agreement with [the appellant] and that he had not asked her or expected her to pay any other liabilities with this money.
[22] [The respondent] added that he had always managed to pay [the appellant] a weekly amount except for a short period of unemployment when he was unable to pay as per the private agreement. [The respondent] said it was June or July 2009 when he was unemployed and he moved to Perth.
Ultimately, the SSAT made a number of findings of fact on the evidence before it, which the Tribunal sets out in paragraphs 25 and 26. The SSAT concluded that there were no child support arrears, on the facts of this case. Significant to the fact finding is that the respondent paid cash monies to the appellant on each occasion, and the appellant then made the alternative payments.
The appellant sets out 26 grounds of appeal. Many of them cover the same substantive issues. As such, I will endeavour to group them together by topic to deal with them more succinctly.
Ground 1
In ground 1, the appellant says that the SSAT had no power to hear and determine the matter as the application was made out of time. Whilst the application was more than 28 days after the CSA objections officer’s decision, an application for an extension of time was earlier made to the SSAT on 19 April 2010. The appellant said that she was a party to that proceeding. Ultimately, there was a brief decision on
3 May 2010 allowing the application to extend time to bring the SSAT proceedings.
That decision was not the subject of an appeal. It therefore remains a valid decision, providing a proper basis for the SSAT to accept the review application, the subject of this appeal. In these circumstances, this ground must be dismissed.
Ground 2
The appellant alleges that the SSAT erred in not defining the respondent’s payments as non-agency payments under the Act. ‘Non-agency payments’ is a term that is utilised in the CSA’s guidelines and it covers payments that are made, other than through the Agency, when the CSA is collecting as to child support payments made to persons other than the carer, when the carer is to receive the child support direct. Section 71 deals with direct payments to the payee in cases where there is an enforceable maintenance liability.
In this case, the payee had not registered the child support assessment for collection until after the relevant date. Therefore, it appears that these payments were, at the time they were made, direct payments. Although, if the period is now covered by the collection period, those payments would be payments directed to her that could be taken into account under s.71. There are further provisions for payments to third parties and payments not in money, although none of these matters are an issue in this case.
As a result, I am not persuaded that the payments, at first instance, were non-agency payments, in that they were payments made directly at a time when the CSA was not collecting child support. In this respect, the appellant has not made out ground 2.
Grounds 3, 6, 7, 8, 11, 12, 14, 15, 16, 17, 18, 19 and 21
All of these grounds, in essence, point to the appellant’s complaints with respect to the SSAT’s fact finding.
It has been a difficult and emotive issue for the parties. The appellant is particularly disappointed with the factual findings that the Tribunal made after hearing the evidence before them. However, appeals against the SSAT are limited to questions of law. They do not extend to a rehearing in the sense that an appeal would be able to do so, if it were an appeal from a trial judge or a trial federal magistrate to the Full Court of the Family Court.
When traversing these various grounds of a fact finding, a number of other issues that may potentially have been a question of law surrounding the fact finding became apparent. They will be dealt with under those headings.
In substance, the appellant’s concern was as follows: she believes the respondent ‘did a back flip’ when one compares his position before the SSAT (and the SSAT’s findings) to notes of a telephone conversation recorded by a CSA officer at page 26 of the court book. There is a note at page 26 that:
[The respondent] stated that he probably will not take this option [appealing to the SSAT] as he has no evidence to prove mutual intention.
[The respondent] stated that he is happy to accept CSA’s decision this time and learn from the experience.
There is no question that this was part of the material that was before the SSAT as they state early in their decision. A note of a telephone conversation of that type is not weighty evidence. It is not clear on the face of it if, as a self-represented litigant, the respondent believed that he had no evidence because he did not have evidence beyond his own oral evidence, or whether he was saying that he accepted the appellant’s version of events. This, coupled with the fact that it is a telephone note by somebody else, makes it even more difficult to utilise as significant evidence.
It may well have been a relevant matter for the purpose of questioning or cross-examining the respondent in the hearing. However, it not a matter of such significance in the fact finding that the Tribunal had to undertake, to require them to identify it specifically as a significant piece of evidence, which, if not referred to in a decision, would show a failure to have regard to the evidence. In these circumstances, that particular piece of evidence, whilst it may well have been relevant in the fact finding process, is not of such significance that a lack of a specific reference to it in SSAT’s decision shows an error of law.
Similarly, the appellant argued that her evidence concerning the breakdown of how the money she received from the respondent was used was not specifically referred to in the decision. Her letter with respect to this would, in a court of law, be referred to as a previous consistent statement and, generally, not admissible in any event. People can write letters, making the same claim over and over again, but the real question is whether or not the SSAT should rely upon such letters or their specific evidence.
The fact that somebody says something a number of times does not normally show that it should be given greater weight. In this case, the SSAT had the appellant on the telephone for a hearing and assessed her evidence on the day. As a result, I am not persuaded that this shows an error of law.
Grounds 4 and 13
These grounds relate to complaints that the SSAT allowed the respondent to place evidence before it, contrary to the SSAT’s earlier directions. The SSAT had made directions for material to be received 14 days prior to the hearing. This material was produced late and then forwarded to the appellant. However, at the time of the hearing, the SSAT did ask the appellant whether she was happy to go ahead, given that material had been provided late. The appellant stated that she was happy to proceed.
In these circumstances, it is difficult to conclude that the SSAT failed to conduct a procedurally fair hearing. The SSAT gave her the opportunity to have an adjournment to peruse the material. By indicating that she was happy to proceed, the appellant did not take up this opportunity. Whilst in a perfect world, all material would always be before the decision-maker and available to the parties well before the hearing, in real life there are often difficulties in achieving this. The appropriate course is to do as the Tribunal did in this case and offer the party, who is potentially prejudiced by late material, the option of either proceeding or having the matter adjourned to a later date if the material is such that it would not be procedurally fair to exclude it.
In most cases, persons who are prepared for a hearing are already sufficiently familiar with material. Generally, additional material is not a difficult matter to cope with, and proceeding with the case is the preferable course rather than delaying matters further. In some cases, however, further delay is needed for a fair hearing. It is appropriate that the Tribunal offered that option to the appellant as they did in this case. In circumstances where the appellant said she was happy to proceed, the failure to adjourn the matter or exclude the evidence, is not an error of law.
Grounds 5 and 9
The appellant refers to notes at pages 26 and 43 of the court book. The appellant says that she pointed those out to the SSAT, and is concerned that they did not specifically appear in the Tribunal’s decision. As referred to earlier, there are some difficulties with those notes. In this case, it is clear that the SSAT had the benefit of the direct evidence of the parties on the key issue. It is also clear that the SSAT had regard to the material in the court book, as set out in paragraph 8 of their decision.
These notes were clearly drawn to SSAT’s attention, by the appellant, in her submissions (as she said in her submissions before this Court).
I am not persuaded that the references are so significant that a failure to specifically deal with them in the decision shows that the SSAT failed to have regard to relevant material or relevant considerations. In these circumstances, this complaint does not amount to an error of law that can found an appeal under the legislation, as drafted.
Ground 10
With respect to ground 10, the appellant alleges that the respondent was not, in fact, unemployed for a period of two weeks, as set out in the SSAT’s decision. Firstly, this is a question of fact, and a finding a fact of the Tribunal, and is not an error of law. Secondly, there is no specific evidence that was said to be before the Tribunal that they failed to have regard to in making this finding. Thirdly, the finding was not central to the Tribunal’s decision. Whether the Tribunal accepted or rejected this particular proposition does not change the basis upon which they ultimately decided the case.
In these circumstances, this ground does not found a successful appeal in the matter.
Ground 20
This ground repeats grounds 4 and 13 making general complaints about the late appeal and late evidence, and it must fail for the same reasons.
Grounds 22 and 25
These grounds, again, refer to the issues relating to non-agency payments under s.71 and following the Child Support (Registration and Collection) Act. For the reasons set out above, these grounds must also fail.
Ground 23
The basis of ground 23 is that the child support was not paid in
2 particular weeks and therefore, the SSAT ought to have allowed for the collection for those two weeks when no payments were made. The SSAT accepted that no payments were made in two of the weeks of the period. However, the basis of the SSAT’s decision was its finding that the payments from the respondent that were made over the whole of the period, in cash, were more than two times the assessed amount covering that period.
I do not find that the SSAT have made an error of law in failing to look at each week individually in the context of this case, rather than looking at the period as a whole. In this case when looking at the period as a whole, the Tribunal concluded that a greater amount was paid than the actual assessment. Therefore, there were no arrears on the finding of the SSAT. I find no error of law in the Tribunal approaching this particular case on that basis.
Ground 24
This ground amounts to a general complaint about the outcome of the process before the SSAT and does not identify any error of law.
Ground 26
The appellant complains that the costs of obtaining a transcript in order to pursue attacks upon the SSAT’s fact finding, on the basis of errors of law concerning the actual conduct of the hearing, was prohibitively expensive. The appellant claims it thereby impeded her ability to bring the appeal proceedings. Unfortunately, the Government does not provide free transcripts for court proceedings in any courts or tribunals. This is understandable, given the very high costs of a transcript and the very real needs of the community in so many sectors, including family law, for practical services.
The transcript for a case like this would not have been long. No quote for the actual cost of the transcript was provided, nor was an application made for the CSA to fund it, pending the appeal’s outcome. On the material placed before the Court, I am not persuaded that the lack of a transcript, or the appellant’s financial circumstances of themselves, make the process so unfair that another party should be ordered to fund the transcript, pending this appeal.
The allegations were general and did not point to a particular crucial exchange that required a transcript.
On a practical level, it is difficult to see that the transcript’s cost would be justified, given the amount involved in this appeal which is significantly less than the ordinary cost of a transcript for today’s hearing. At best, the case involved a little over $1000.
In the circumstances, I cannot accept that this is a ground of appeal that identifies a question of law.
Conclusion
In the circumstances of this case, I have no choice but to conclude that a question of law has not been established. Having regard to the limited basis upon which appeals are allowed to be prosecuted from the SSAT, being limited to a question of law, the appeal must therefore be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 1 December 2010
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