Birta v Social Security Appeals Tribunal [2010] FMCA 429 (21 June 2010)

Last Updated: 30 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIRTA v SOCIAL SECURITY APPEALS TRIBUNAL

[2010] FMCA 429

COURTS AND JUDICIAL SYSTEM – Jurisdiction – Federal Magistrates Court in Western Australia has no jurisdiction to make orders departing from child support assessment – application dismissed for want of jurisdiction.

Child Support (Registration and Collection) Act 1988, ss.110B, 110D

Williams v Child Support Registrar (2009) 109 ALD 343; [2009] FMCA 481

Applicant:

MARCEL BIRTA

Respondent:

SOCIAL SECURITY APPEALS TRIBUNAL

File Number:

PEG 80 of 2010

Judgment of:

Lucev FM

Hearing date:

21 June 2010

Date of Last Submission:

21 June 2010

Delivered at:

Perth

Delivered on:

21 June 2010

REPRESENTATION

The Applicant:

In person

The Respondent:

No appearance

ORDERS

(1) The application be dismissed.
(2) There be no order as to costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 80 of 2010

MARCEL BIRTA

Applicant

And

SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons edited from the transcript)

Application

1. There is an application before the Court headed Notice of Appeal (Child Support) that purports to be an appeal from a decision of the Social Security Appeals Tribunal in relation to a child support assessment matter.
2. Mr Birta has confirmed earlier this morning that what is sought by way of substantive relief is to send the matter back to the Social Security Appeals Tribunal to deal with the issue of child support assessment. The respondent does not appear, having advised the Court that it considers the Court does not have jurisdiction to deal with the matter. In the Court’s view it is unfortunate that the respondent does not appear, particularly if, as Mr Birta asserts, it is issuing letters in the State of Western Australia advising persons who come before it that they have a right of appeal to this Court in child support assessment matters. Nevertheless, at the end of the day if the Court has no jurisdiction then the Court has no jurisdiction to deal with the matter, notwithstanding what the respondent might be advising persons who appear before it.

Jurisdiction to vary child support assessment

3. In relation to the jurisdiction of the Court to deal with a matter of this type, the Court in Williams v Child Support Registrar[1] held that this Court does not have jurisdiction to deal with cases seeking relief in relation to the reassessment of child support assessment, as follows:
   • 53. Save for the provision relating specifically to DPO, the jurisdiction of this Court in child support assessment matters is prescribed by s.99(1) of the CS(A) Act which provides as follows:
     • (1) Jurisdiction is conferred on the Family Court and the Federal Magistrates Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act.
   • 54. The Registrar argued that in Western Australia, this Court is not a court of competent jurisdiction for the purposes of an appeal under s.116(1) of the CS(A) Act because the Family Court of Australia does not have jurisdiction in matrimonial matters in Western Australia, and says that this Court has been given the same jurisdiction as the Family Court of Australia under the CS(A) Act.
   • 55. The Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Act 1999 (Cth) described the purpose of the new s.40A as follows:
     • ...to ensure that the Federal Magistrates Court can only exercise jurisdiction in the same State and Territories as the Family Court can. This is designed to ensure that if State or Territories set up their own family courts, any restriction on the exercise of family law jurisdiction by the Family Court [of Australia] will extend to the Federal Magistrates Court.
   • 56. When amendments were made to s.99(1) of the CS(A) Act to confer jurisdiction on this Court the Explanatory Memorandum described the effect of the amendments as follows:
     • This item amends s99(1) of the Child Support (Assessment) Act 1989, to give the Federal Magistrates Court the same jurisdiction as the Family Court of Australia under this Act.
   • 57. The Registrar thus says that the jurisdiction of this Court in child support assessment is restricted in a similar manner to s.40A of the Family Law Act 1975 which provides:
     • The jurisdiction of the Federal Magistrates Court under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory.
   • 58. In the Court’s view the Registrar’s argument is confirmed by s.100(1) of the CS (A) Act which provides as follows:
     • (1) The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:
     • (a) the proceedings were proceedings under Part VII of that Act; and
     • (b) the proceedings were proceedings instituted under Part VII of that Act; and
     • (c) a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
     • (d) a decree made in the proceedings were a decree made under Part VII of that Act; and
     • (e) matters arising in the proceedings were matters arising under Part VII of that Act; and
     • (f) any other necessary changes were made.
   • 59. This Court therefore has no jurisdiction in Western Australia to provide the relief sought by the applicant in relation to reassessment of the child support assessment and the Court cannot consider the merit of the applicant’s claim. This ground of the application therefore fails.[2]
4. In Williams, as the Court has indicated in the course of discussion with Mr Birta, the Court took the view that there was no jurisdiction. Nothing has been put before the Court today to persuade it that that judgment in Williams is wrong.
5. In any event, the appeal also suffers from other deficiencies. In the Court's view, the appeal is incompetent in any event, because:
   1. it does not raise a question of law arising from the Social Security Appeals Tribunal decision, as the grounds of appeal relate strictly to matters of fact with which the applicant has a difficulty in accepting;[3]
   2. the applicant’s former partner and the Child Support Registrar are not parties to the proceeding.[4]
6. The Court has indicated to Mr Birta that the seemingly erroneous advice that he has received from the respondent with respect to appealing to this Court, and the fact that he has made an appeal to this Court in reliance on that advice, might be matters to be included in an application to the Family Court of Western Australia with respect to this matter by way of support for an extension of time application. If Mr Birta follows that course, those matters will be a matter for determination by the Family Court. This Court simply notes that it has indicated, in the course of argument, those might be matters that Mr Birta might rely upon in an extension of time application.
7. In the circumstances, therefore, there will be an order that the application be dismissed. Given that the respondent does not appear, there will also be an order that there be no order as to costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:

Date: 22 June 2010

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[1] (2009) 109 ALD 343; [2009] FMCA 481 (“Williams”).
[2] Williams ALD at 352-353 per Lucev FM; FMCA at paras.53-59 per Lucev FM (footnotes from original text omitted).
[3] As required by the Child Support (Registration and Collection) Act 1988, s.110B (“CS (R&C) Act”).
[4] As required by the CS (R&C) Act, s.110D.