Ahern & Ahern & Anor (SSAT Appeal)
[2013] FCCA 436
•11 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHERN & AHERN & ANOR (SSAT APPEAL) | [2013] FCCA 436 |
| Catchwords: PRACTICE AND PROCEDURE – Stare decisis – judicial comity. |
| Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) |
| Cases cited: Ahern & Ahern (SSAT Appeal) [2012] FMCAfam 1299 Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 Comcare v Burton [1998] FCA 1144; (1998) 157 ALR 522 CSR & MMB (SSAT Appeal) [2007] FMCAfam 944; (2007) 220 FLR 245 Dwyer v McGuire (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420 Gurnett v The Macquarie Stevedoring Co Pty Ltd (1956) 95 CLR 106 Kioa v West (1985) 159 CLR 550 Kindree & CSR (SSAT Appeal) [2010] FMCAfam 357; (2010) FLC 98-052 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Lombardo v Federal Commissioner of Taxation [1979] FCA 66; (1979) 28 ALR 574 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829; (2007) 38 Fam LR 31 Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Sagal & Child Support Registrar (SSAT Appeal) [2013] FCCA 51 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175 |
| Appellant: | MR AHERN |
| First Respondent: | MS AHERN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 5609 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 13 May 2013 |
| Date of Last Submission: | 13 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2013 |
REPRESENTATION
| Counsel for the Appellant: | Ms Kaur-Bains |
| Solicitors for the Appellant: | Jackson Lalic Lawyers |
| The First Respondent: | In person |
| Solicitor for the Second Respondent: | Mr Gouliaditis |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The Appeal is allowed.
The decision of the Social Security Appeals Tribunal made on 26 May 2012 and posted on 5 June 2012 is set aside.
The matter is remitted to the Social Security Appeals Tribunal for determination according to law.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within seven (7) days of the date of these Orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Ahern & Ahern & 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 5609 of 2012
| MR AHERN |
Applicant
And
| MS AHERN |
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 26th May 2012 and posted on 5th June 2012. The Tribunal set aside the decision under review and substituted a decision that the Appellant’s adjusted taxable income be set as follows:
a)$46,427.00 for the period 1 May 2010 to 30th June 2010; and
b)$68,330.00 for the period 1 July 2010 to 30th June 2013.
In his Amended Notice of Appeal[1] filed in Court by consent on 13th May 2013, the Appellant seeks the following Orders:
[1] Which was in fact a Further Amended Notice of Appeal
1. The Appeal be allowed.
2. Pursuant to s.110F(2)(a) of the Child Support (Registration and Collection) Act 1988 (the “the Registration Act”)[2], the decision of the Social Security Appeals Tribunal (“the Tribunal”) in 2012/SC244727 that the Appellant’s adjusted taxable income for the period 1 July 2010 to 30 June 2013 id $68,330 be set aside.
3. Alternatively, pursuant to s.110F(2)(b) of the Registration Act the matter is remitted back[3] to the Tribunal for a rehearing.
4. The Second Respondent pay the Appellant’s costs of the Appeal.
[2] It is usually referred to as the Registration and Collection Act (see Child Support (Assessment) Act 1989 (Cth) s.5
[3] sic
5. Such further and other orders as the Court deems appropriate.
The Appellant relies on the following grounds of Appeal:
$70,000 Issue
1. The Tribunal erred in law by making a finding of fact at [22] and at [28] of the decision that the appellant had repaid a $70,000 line of credit (incorrectly described by the Tribunal as an “overdraft”) when there was no evidence to support such a finding and that finding that the appellant had repaid the $70,000 “overdraft” was a material finding in the Tribunal’s conclusion as to the Appellant’s “financial resources”.
No Jurisdiction for period 1 July 2010 to 30 June 2013
2. The Tribunal had no jurisdiction to make a departure order in respect of the period 1 July 2010 to 30 June 2013 for the following reasons:
a.the Appellant applied, on 5 April 201, for a departure order in relation to the period 1 May 2010 to 30 June 2010. That application is permitted by s.98B of the Assessment Act[4];
[4] i.e. the Child Support (Assessment) Act 1989 (Cth) (see Child Support (Registration and Collection) Act 1988 (Cth) s.4
b.On 22 June 2011 the Child Support Registrar made a determination under s. 98S(1)(a) of the Assessment Act, in respect of the period 1 May 2010 to 29 July 2010 (“the original decision”);
c.The Appellant objected to the original decision 16 October 2011, pursuant to s.80(1) of the Registration Act;
d.On 9 December 2011 the Child Support Registrar determined the objection to the original decision (“the objection decision”). The objection decision was restricted to the period 1 May 2010 to 29 July 2010.
e.On 6 January 2012, the Appellant lodged an Application for Review in the Tribunal in respect of the objection decision (“the decision”);
f.The Tribunal on review must do one of the things outlined in s.103S of the Registration Act in respect of “the decision”;
g.By s.103T of the Registration Act for “the purpose of reviewing a decision”, being the relevant Child Support Registrar’s “decision”, the Tribunal may exercise all the powers and discretions conferred on the Registrar;
h.In making a determination for the period 1 July 2010 to 30 June 2013 the Tribunal went beyond the scope in time of the relevant decision and was not, in doing so, reviewing the relevant decision but rather was making an entirely new decision.
Procedural unfairness/breach of natural justice
3. The Tribunal denied the Appellant procedural fairness/natural justice in relying on the information in the 30 June 2011 tax return as to “drawings” of $52,562 without telling the Appellant it intended to rely on the drawings of $52,562 to adjust the Appellant’s taxable income for the period 1 July 2010 to 30 June 2013 and without giving the Appellant an opportunity to present further evidence on that issue.
Background
The background facts to this matter are succinctly set out in the Appellant’s Outline of Submissions and are substantially agreed upon by the Second Respondent, the Child Support Registrar, with one exception, being the date on which the Child Support Registrar allowed the Appellant’s departure application, which should read 22nd June 2011 rather than 1st July 2011.
The Appellant and the First Respondent are the parents of three children, aged 15, 13 and 9 years.
The Appellant is a self-employed [omitted]. He suffers from a mental condition, for which he receives treatment.
The First Respondent is self-employed [omitted] and a university student.
The Appellant’s 2009 financial year tax return disclosed a taxable income of $83,293.00. During that financial year the Appellant was employed by [omitted]. The Appellant’s 2010 financial year tax return disclosed a taxable income of $46,427.00. During this time the Appellant had commenced practice as a [omitted] on his own account.
On 12th November 2010 the Child Support Agency made a Child Support Assessment payable by the Appellant for the period 1st May 2010 to 29th July 2010. This administrative assessment of child support was based on the Appellant’s 2009 taxable income of $83,293.00. The Appellant had estimated his income for the 2011 financial year as $0.
On 5th April 2011 the Appellant lodged with the Child Support Registrar an “Application for Changing Your Child Support Assessment in Special Circumstances” (a departure application). The departure application initiated by the Appellant was expressly sought in respect of the period 1st May 2010 to 31st July 2010.
On 29th April 2011 the First Respondent lodged with the Child Support Registrar a “Change of Assessment in special circumstance – Response” in response to the Appellant’s departure application. In that response the First Respondent did not seek any specific result and expressly indicated that she was “unsure” of what change should be made to the administrative Assessment.
On 22nd June 2011 the Child Support Registrar allowed the Appellant’s departure application in part. The decision of the Child Support Registrar on the departure application was:
“For the period 1 May 2010 and 29 July 2010 the CSA is to set Mr Ahern’s annual rate of child support at an amount that will reduce his arrears to as close to zero as possible but will not result in Ms Ahern being put into overpay situation”.
The First Respondent did not object to the departure application decision.
On 15th August 2011 the Appellant objected to the decision on the departure application in accordance with s.98B of the Registration and Collection Act.
On 9th December 2011 the Child Support Registrar determined the Appellant’s objection, allowing it in part. For the period 1st May 2010 to 29th July 2010 the Child Support Registrar used the 2009 taxable income of $83,293.00. The decision of the Child Support Registrar on the objection was expressed as:
“For the period from 1 May 2010 to 29 July 2010 to (sic) the annual rate of child support is set at $13,677.”
On 6th January 2012 the Appellant lodged an application for review of the Child Support Registrar’s decision with the Social Security Appeals Tribunal (SSAT).
The application for review was heard on 26th April 2012. Both the Appellant and the First Respondent gave oral evidence by conference telephone. The hearing was adjourned to allow the Appellant to provide his taxation return to the Tribunal.
The Tribunal Decision
The Tribunal made its decision on 26th May 2012 and posted its Reasons for Decision to the parties on 5 June 2012.
The decision of the Tribunal was set out at paragraphs 31 and 32 of the Reasons for Decision:
31.The Tribunal has found that there was a reason to change the assessment and that it was just and equitable to make the determinations to change Mr Ahern’s adjusted taxable income and increase the annual rate.
32.The Tribunal therefore sets aside the decision under review and substitutes the decision that Mr Ahern’s adjusted taxable income be set as follows:
· $46,427 for the period 1 May 2010 to 30 June 2010;
· $68,330 for the period 1 July 2010 to 30 June 2013
This means that Mr Ahern’s application for review is unsuccessful.
The Tribunal’s Reasons for Decision
A summary of the Tribunal’s Reasons for Decision appears at paragraphs 22 to 32 of the Appellant’s Outline of Submissions. The Child Support Registrar adopted that summary, with certain amendments and additions. This summary incorporates those amendments and additions.
The Tribunal was provided with the documents located in Tabs 2, 3 and 4 of the Joint Tender Bundle[5]. The Appellant also provided the Tribunal with an 18 page facsimile sent on 21st May 2012, which was marked by the Tribunal as folios A212 to A229.
[5] Exhibit 1
The Tribunal in the Decision at [1] noted the relevant background to the matter coming before the Tribunal. The Tribunal indicated its understanding at [3] that the Appellant lodged his application for review with the Tribunal in respect of the Child Support Registrar’s decision on the Appellant’s departure application for the child support assessment period 1st May 2010 to July 2010. In that connection, the Tribunal noted that the Appellant lodged an application for review of “that decision” to the Tribunal.[6]
[6] Tribunal Reasons for Decision at [3]
At [9] and [10] the Tribunal set out the evidence considered. Copies of the documents are at Tabs 2,3 and 4 of the Joint Tender Bundle. The transcript of the oral evidence is at Tab [6] of the Joint Tender Bundle.
The Tribunal noted at [15] that the documentary evidence confirmed the following:
·The Appellant’s 2008/2009 taxable income was $83,293;
·The Appellant’s 2009/2010 taxable income was $46,427;
·The Appellant remained self-employed as a [omitted] and his “drawings” for the 2011 financial year were $52,562 net ($68,338 gross) applying an average tax rate of 30%.
At [16] the Tribunal says it made findings in accordance with the evidence identified at [15].
The Tribunal concluded that “the assessment” used an income of $83,293.00 for the Appellant for the period of 1st May 2010-29 July 2010.[7] The Tribunal concluded, though, that the Appellant’s taxable income during the period was in fact $46,427.00. The Tribunal concluded:
This is a ground to change the assessment.[8]
[7] Tribunal Reasons for Decision at [20]
[8] Ibid
The Tribunal then, at [20], turned its attention to the period 30th July 2010 to 30 June 2011 and noted that the Appellant was assessed for this period (albeit it did not note that the Appellant was assessed for this period under a separate assessment to the 1st May 2010 to 29 July 2010 assessment) to pay child support on the basis of an estimated income for the 2011 financial year of $0.[9]
[9] Ibid
Ultimately, the Tribunal concluded that all of the Appellant’s assessments starting from 1st May 2010 did not reflect the Appellant’s income and financial resources.[10]
[10] Ibid
In assessing whether it was just and equitable to depart from “the assessment” the Tribunal says it placed reliance on the documentary evidence before it and made the following findings of fact in relation to the Appellant at [22]:
· (The Appellant’s partner) provided the $70,000 overdraft for the establishment costs of his [business]…
· Mr Ahern is now a self-employed [omitted].
· Mr Ahern’s 2011 tax return (estimate) declares a personal income of $10,545 although records he had net drawings from his self employment of $52,562 or gross $68,330 applying an average taxation rate.
· His statement of financial circumstances also declared expenses of $1,227.39 per week or alternatively $63,824.28 per annum consistent with his grossed up drawing income. Mr Ahern could not indicate how he met such expenses on a nil income…
…
· Mr Ahern has some costs associated with his own self support, namely treatment expenses for a mental health condition…
· Mr Ahern incurred a minimal (if any) child support liability during the period 30 July 2010 to 30 June 2011 as a result of his nil estimate of income lodged with the Agency. His most recent taxation return (estimate) nominates an income of $10,545 which if accepted by the Australian Taxation Office and the Agency would again result in the minimal rate of child support payable by him to Ms Ahern, despite his drawings and ability to meet personal expenses in excess of $60,000. This reduced assessment has increased Mr Ahern’s cash flow for the 2011 financial year as he avoided supporting his children. This estimated taxable income does not reflect Mr Ahern’s lifestyle and spending pattern and is akin to unemployment benefits. The Tribunal does not accept the estimated taxable income and prefers to apply his drawings as a measure of his financial resources and income. Notably the taxation return claims various business expenses as deductions from which Mr Ahern may in fact be deriving a personal financial advantage, although the evidence before the Tribunal did not allow it to assess what percentage of expenses were in fact personal. For this reason the Tribunal elected not to add back any deductions in the taxation return.[11]
[11] Tribunal Reasons for Decision at [22]
The Tribunal concluded at [25]:
The Tribunal is satisfied that there is no reason why Mr Ahern’s child support assessment should not be assessed with reference to his taxable income and drawings. The Tribunal does not accept the 2011 taxable income estimate as being representative e of Mr Ahern’s income and financial benefits from his self employment arrangement as he clearly had drawings and was able to meet expenses in excess of $60,000. In addition, there was no compelling evidence that his costs of self support or other day to day necessary and reasonable expenses could be prioritised above any child support liability.[12]
[12] Tribunal Reasons for Decision at [25]
The Tribunal also found:
· Mr Ahern has repaid the $70,000 overdraft and other loans in full over a period of two years.[13]
and
The Tribunal has no evidence to suggest that making the determinations would cause hardship to Mr Ahern, specifically given his oral evidence that he has managed to repay his overdraft within two years…[14]
[13] Ibid at [22]
[14] Ibid at [28]
Submissions
The Appellant and the Child Support Registrar prepared comprehensive and helpful written submissions. The First Respondent attended the hearing by telephone but did not make a submission.
Annoyingly, the Appellant’s submissions deal with the Grounds of Appeal in a different order to the way they appear in the Amended Notice Of Appeal. The Solicitor for the Child support Registrar has elected to deal with the Appellant’s submissions in the Order in which they appear. However, for the purpose of this decision, the Grounds of Appeal will be considered in the order in which they appear in the Amended Notice of Appeal.
Ground 1 – whether there was evidence to support the finding as to repayment of the $70,000 line of credit.
Ground 1 asserts that the Tribunal erred in law by making a finding of fact at paragraphs [22] and [28] of the Reasons for Decision that the Appellant had repaid a $70,000.00 line of credit (incorrectly described by the Tribunal as an “overdraft”) when there was no evidence to support such a finding and the finding that the Appellant had repaid the $70,000.00 “overdraft” was a material finding in the Tribunal’s conclusion as to the Appellant’s “financial resources”.
Counsel for the Appellant, Ms Kaur-Bains, submitted that there was no evidence or material, either documentary or oral, capable of supporting that finding.
This finding of fact was a material finding in the Tribunal’s ultimate conclusions. As required by s.103X of the Registration and Collection Act, the Tribunal was required in the written reasons to set out its findings on any material question of fact and refer to the evidence on which the findings of fact are based. At paragraph [22] of the Reasons For Decision, the Tribunal refers to “documentary evidence before it” as the basis for the finding that the Appellant had repaid the $70,000.00. However, nowhere in the Joint Tender Bundle can any documentary evidence be located as to the repayment of the $70,000.00.
Therefore, it is submitted, prima facie the Court can find that there is no such documentary evidence and the Court can then find that the Tribunal had no evidence upon which this finding could be made.
A Tribunal making a finding of fact on a question of fact without evidence supporting that finding commits an error of law (Kostas v HIA Insurance Services Pty Ltd[15] at [91], see also Gurnett v The Macquarie Stevedoring Co. Pty. Ltd. [No.2][16];Lombardo v Federal Commissioner of Taxation[17]; TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation[18]).
[15] [2010] HCA 32
[16] (1956) 95 CLR 106
[17] [1979] FCA 66; (1979) 28 ALR 574
[18] [1988] FCA 119; (1988) 82 ALR 175
Ms Kaur-Bains also submitted that there was no oral evidence before the Tribunal to support that finding, made by the Tribunal at [28], that the Appellant had given oral evidence that he had “managed to repay his overdraft within two years”[19].
[19] Tribunal Reasons for Decision at [28]
Counsel for the Appellant referred to the transcript of the Tribunal hearing where the Appellant was asked questions by the Tribunal Member and he replied that he and his partner were “basically living on an overdraft facility at the time”.[20]
[20] Transcript page 11, lines 26-7
It was submitted that the Transcript shows that the Appellant was speaking about two separate credit facilities and nowhere in the exchange with the Tribunal Member did the Appellant indicate that a line of credit in the sum of $76,057.28 had been repaid by him.
It was further submitted that the Appellant was never asked about a line of credit facility, as opposed to a business overdraft. The processes of the Tribunal are inquisitorial rather than adversarial and this places the obligation of identifying the issues on the Tribunal (PJ & Child Support Registrar (SSAT Appeal)[21] at [37].
[21] [2007] FMCAfam 829; (2007) 38 Fam LR 31
Thus, it is submitted that the answers provided do not permit and do not provide any proper basis for the factual finding made by the Tribunal that the $76,057.28 had been repaid by the Appellant within two years. As there is no evidence to support that conclusion, the Appellant submits that the Tribunal committed an error of law and the
Appeal should be allowed on that ground alone.
Against this, Mr Gouliaditis for the Child Support Registrar submits that there are two limbs to this Ground of Appeal:
(1)That in determining whether there was evidence to support the relevant finding, the Court may only have regard to the documentary evidence; and
(2)That, even if regard is had to the oral evidence, there was no such evidence to support the finding that the Appellant had “repaid the $70,000 overdraft and other loans in full over a period of two years”[22].
[22] Tribunal Reasons for Decision at [23]
The Appellant is submitting, according to the Registrar, that he gave evidence of two separate credit facilities (a line of credit facility and an over draft facility) which the Tribunal conflated, and, when he spoke of having repaid the overdraft facility, he was not referring to the line of credit facility.
The Registrar submits that if there was such an error, it was brought about by the Appellant in his evidence.
Principally, the Registrar submits that the Appellant was impermissibly construing paragraph [22] of the Decision “with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[23] at 272).
Ground 2 – Whether the Tribunal had jurisdiction to make a departure determination with respect to the period 1 July 2010 to 30 June 2013
[23] (1996) 185 CLR 259
Ground 2 asserts that the Tribunal had no jurisdiction to make a departure order in respect of the period 1st July 2010 to 30th June 2013 for these reasons (summarised):
a)The appellant had applied on 5th April 2011 for a departure order in relation to the period 1st May 2010 to 30 June 2010;
b)On 22nd June 2011 the Child Support Registrar made a determination in respect of the period 1st May 2010 to 29th July 2010;
c)The Appellant objected to that decision on 16th October 2011;
d)On 9th December 2011 the Registrar determined the objection to the decision for the period 1st May 2010 to 29th July 2010;
e)On 6th January 2012 the Appellant applied to the Tribunal for a review of that decision;
f)The Tribunal on review must do one of the things set out in s.103S of the Registration and Collection Act;
g)By s.103T of the Act for the purpose of reviewing a decision the Tribunal may exercise all the powers and discretions conferred on the Registrar; and
h)In making a determination for the period 1st July 2010 to 30th June 2013 the Tribunal went beyond the scope in time of the relevant decision and was not, in doing so, reviewing the relevant decision but was rather making an entirely new decision.
In his submissions, the Appellant states that the Tribunal in its decision at [3] that:
Mr Ahern lodged an application for a review of that decision[24] to the Social Security Appeals Tribunal on 6 January 2012.
[24] i.e. the decision of the objections officer made on 9 December 2011
The matter came before the Tribunal as a review of the Registrar’s decision in respect of the Appellant’s departure application made in respect of the period 29th May 2010 to 29th July 2010. The Registrar had made assessments in respect of other periods, being 30th July 2010 to 30th June 2011 and from 1st July 2011 on.
However, the Tribunal treated the application for review as an application that permitted it to make decisions regarding child support assessment for both future periods and periods of child assessment (for which assessments existed) not the subject of a relevant departure application, a departure application decision, an objection or an objection decision.
It is submitted that, in doing so, the Tribunal committed an error of law by purporting to review and make determinations in respect of periods over which it had no jurisdiction.
The Appellant referred the Court to the provisions of s.87 of the Act, which sets out what the Registrar must do if an objection is lodged. The Registrar must:
a)Consider the objection; and either
b)Disallow the objection or allow it, in whole or in part (s.87(1).
The Registrar must, under s.87(2), serve a notice which includes, under s.87(3)(b):
(b)a statement to the effect that if the person is aggrieved by the decision on the objection:
(i) (not relevant)
(ii)otherwise – the person may, subject to this Act, apply to the SSAT for review of the decision.
The Appellant submits that s.89(1) of the Act provides that a person may apply to the Tribunal:
for review of a decision of the Registrar if:
(a) the decision is set out in item of the following table;
One of the types of decision in the table for which a person may apply for review is that set out in Item 2:
a decision under subsection 87(1) on an objection to a decision (the original decision) of the Registrar.
The Appellant submits that the only decisions for which a person may seek a review in the Tribunal and, a fortiori, the only decisions the Tribunal can review, are those listed in the table in s.89(1). It is s.89(1) that places a limit on decisions that a person may have reviewed by the Tribunal and, in turn, it is s.89 and not s.103T of the Registration and Collection Act, that defines the limits of what decisions (the Tribunal can review) and therefore what powers the Tribunal can exercise and, accordingly, what orders the Tribunal can make in a relevant review application.
The Appellant further submits that the Tribunal lacked jurisdiction to review any other decision and any other assessment. By finding that the relevant assessments were unfair and by purporting to substitute those decisions with a decision that the Appellant’s taxable income for those periods should be set as determined by the Tribunal, the Tribunal acted in excess of its jurisdiction and thereby committed an error of law that vitiates the Tribunal’s decision.
It is submitted that neither s.98S of the Assessment Act nor s.103T of the Registration and Collection Act confer jurisdiction on the Tribunal to review the other periods.
There is no doubt that when reviewing a decision of the Child Support Registrar that is properly before the Tribunal for review and that the Tribunal is able to review,[25] the Tribunal has all the powers and discretions of the Child Support Registrar including the powers in s.98S of the Assessment Act. Of key importance, though, Ms Kaur-Bains submits, is the fact that on a proper construction of the objection and review scheme in Parts VII and VIIA of the Registration and Collection Act, the combined effect of s.89 and s.103T(1) of the Act expressly qualifies the decision with respect to which the Tribunal has all of the Child Support Registrar’s powers and discretions.
[25] Emphasis added
The Appellant referred the Court to the decision of Comcare v Burton[26], where Finn J dealt with the powers of the Administrative Appeals Tribunal under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The issue before the Court was whether it was open to the Tribunal to decide a matter that was not the immediate subject of a “reviewable decision”. His Honour held at 528:
The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker…[27]
[26] [1998] FCA 1144; (1998) 157 ALR 522
[27] [1998] FCA 1144 at 528 (33)
In CSR & MMB (SSAT Appeal)[28] Sexton FM[29] at [26]-[28] followed the decision in Comcare v Burton, finding that s.43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is the parallel provision to s.103T of the Child Support (Registration and Collection) Act 1988 and is not a source of jurisdiction.
[28] [2007] FMCAfam 944, reported as Child Support Registrar v MMB (2007) FLR 245
[29] As her Honour then was
Against this, in Kindree & CSR & Anor (SSAT Appeal)[30], at [19]-[20], Riethmuller FM[31] did not accept an argument to that effect. His Honour referred to the provisions of s.98S of the Assessment Act and s.103T of the Registration and Collection Act and held at [20]:
Section 103T(1) of the Child Support (Registration and Collection) Act 1988 confers on the tribunal ‘all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar. As a result, the tribunal stands in the shoes of the Registrar and therefore has the power to vary an annual rate of child support beyond the period referred to in the application.[32]
[30] [2010] FMCAfam 357; (2010) FLC 98-052
[31] As his Honour then was
[32] [2010] FMCAfam 357 at [20]
Counsel for the Appellant submits that this decision should not be followed. She notes that, in referring to s.103T, his Honour did not refer to the qualifying words in the section preceding the words “all the powers and discretions that are conferred by this Act and the Assessment Act”. It is submitted that the preceding words “for the purpose of reviewing a decision” are of utmost importance. The decision in Kindree, it is submitted, is not binding.
Counsel for the Appellant referred to similar provisions in other legislation, in particular ss.96 and 97 of the Taxation Administration Act 1996 (NSW). The effect of these sections was considered by the NSW Court of Appeal in Chief Commissioner of State Revenue v Paspaley[33] at [27]-[28]. Section 97 of the Act provides that:
(1)A taxpayer may apply to the Supreme Court for a review of a decision of the Chief Commissioner that has been the subject of an objection under Division 1…
[33] [2008] NSWCA 184
In that decision, Basten JA, with whom Giles JA and Campbell JA agreed, held:
27.Importantly, the review provided by s 97 (consistently with s 96) is limited to a decision “that has been the subject of an objection under Division 1”: s 97(1). Accordingly, a decision to which an objection cannot be taken, and a decision to which an objection has not been taken, will not fall within the scope of s 97 (providing a review by this Court) but will fall within the exclusion in s 103A(1).
28.It is also important to note that the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer’s dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.[34]
[34] [2008] NSWCA 184 at [27]-[28]
Essentially, the Appellant’s submission on this issue is contained in paragraphs [70] and [71] of the Appellant’s Outline of Submissions:
70.By the time a decision[35]comes before the Tribunal for review, that decision is defined. It is defined by s. 89(1) of the Registration and Collection Act. It is only that decision to which the Tribunal has the power conferred by s.103T of the Registration and Collection Act.
71.By purporting to make a determination adjusting the Appellant’s taxable income for a period not the subject of the relevant enlivening decision and for periods the subject of operative administrative assessments made by the Registrar which have never been the subject of (or indeed disturbed by) a departure application, a departure decision, an objection and an objection decision, the Tribunal acted beyond power and committed an error of law.
[35] Emphasis in the original
Counsel for the Appellant also referred the Court to the decision of Burchett J in La Macchia v Minister for Primary Industries and Energy[36] on the doctrine of stare decisis and the principle of judicial comity. In that case, it was held that whilst the doctrine of stare decisis does not compel the conclusion that a judge must always follow a decision of another judge of the same court, such a decision should be followed unless it is considered to be clearly wrong.
[36] (1992) 110 ALR 201
The solicitor for the Registrar submitted that the Court should reject the Appellant’s argument that, since his original application for a departure determination to the Registrar, or at least the decision made by the objections officer, was made in relation to the period 29th May 2010 to 29th July 2010, the Tribunal has no jurisdiction to make a determination for any broader period, especially a period covered by other administrative assessments.
It is submitted that the Registrar’s jurisdiction to make a departure determination under Division 2 of Part 6A is conditioned only on the existence of “an application” (s.98C(1)(a)). Once that jurisdiction is enlivened, the Registrar, upon being satisfied that it is appropriate to “make a particular determination”, may make the determination (s.98C(1)).
The Registrar draws support from the decision of Dwyer v McGuire[37], where it was held, with respect to the Court’s cognate power to make departure orders:
[T]he structure of the Act is such that once a valid application for departure has been made, it throws open for consideration by the Court the question of departure from the administrative assessment provisions of the Act not only in respect of any current or past child support years but also I respect of future years. Although nothing in the Act says so specifically, I think this is clear by inference from provisions such as ss 18(2), 119(1) and 119(2)….I am aware of many reported decisions of the Court in which departure orders have been made in respect of future child support years for which an administrative assessment has not been made.[38]
[37] (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-420
[38] (1993) 114 FLR 325 at 336
It is further submitted that the Registrar’s decision to make a determination is the subject of a right to objection under s.80 of the Registration and Collection Act, and the subsequent decision under s.87(1) on an objection is subject to review by the Tribunal under s.89(1). The subject matter of the review by the Tribunal is the Registrar’s decision to either allow or disallow a decision to make a departure determination under Part 6A. Although the Tribunal’s jurisdiction depends on the existence of an objection decision on the question of whether a departure determination should be made, there is nothing in the legislation that compels the conclusion that the Tribunal’s jurisdiction is confined by the terms of the actual decision made on the objection, let alone the terms of the application for departure determination.
The Registrar submits that:
Indeed, such a conclusion would undermine the object of s 103S(1), which empowers the SSAT to relevantly affirm the decision, vary it or substitute “a new decision”, and s. 103T(1), which states that “the SSAT may, for the purpose of reviewing a decision…exercise all the powers and discretions that are conferred by [the Collection Act] and the Assessment Act on the Registrar”.[39]
[39] Submissions of the Child Support Registrar page 5 at [25]
The Registrar submits that provisions of this type have been held to confer on a tribunal the function of “review[ing] administrative decisions on their merits” (see Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2[40] at 91). Where a tribunal has the power to exercise all of the powers and discretions of the original decision-maker, the tribunal “has been said to stand in the shoes of the original decision-maker” (see Shi v Migration Agents Registration Authority[41] per Kiefel J at [143]).
[40] (1981) 3 ALD 88
[41] (2008) 235 CLR 286
In summary, the Registrar submits that in the case under review:
26.1The SSAT was reviewing, on the merits, the Registrar’s decision on an objection against a decision “to make a determination” under Part 6A of the Assessment.
26.2In executing its function, the SSAT was empowered to, relevantly, “set the decision aside” and “substitute a new decision”.
26.3In substituting a new decision, the SSAT could exercise all the powers and discretions that are conferred by the Assessment act on the Registrar when considering whether to make a determination (including its form and length).
26.4Those powers and discretions included the making of a determination under Part 6A that is not limited by the terms of the application for a departure.[42]
[42] Submissions of the Child Support Registrar page 6 at [26]
Whilst the Registrar concedes the Appellant’s contention that s.103T(1) of the Registration and Collection Act confers power but not jurisdiction, the Registrar submits that the Tribunal’s jurisdiction is contingent on the existence of an objection decision and is not confined by the terms of that determination. Thus, the Appellant’s reliance on Child Support Registrar & MMB[43] is misplaced.
[43] supra
Further, the Registrar submits that the same argument as that pressed by the Appellant in this case was previously considered and rejected by Riethmuller FM in Kindree & Child Support Registrar.[44]
[44] supra
It is submitted that for the appellant to succeed, he must satisfy the Court that the decision in Kindree is “plainly wrong”.
Ground 3 – whether the Tribunal denied the Appellant procedural fairness in relying on information as to “drawings” in the Appellant’s 30 June 2011 tax return
The Appellant’s Ground 3 asserts that the Tribunal denied the Appellant procedural fairness/natural justice in relying on the information in the (Appellant’s) 30th June 2011 tax return as to “drawings” of $52,562 without telling the Appellant it intended to rely on the drawings of $52,562 to adjust the Appellant’s taxable income for the period 1st July 2010 to 30th June 2013 and without giving the Appellant an opportunity to present further evidence on that issue.
Counsel for the Appellant submits that the common law rules of natural justice (procedural fairness) require that persons be afforded a fair hearing before decisions are taken which affect them.
The Tribunal asked the Appellant for his 2011 income tax return on the last day of the hearing. This, it is submitted, led to a breach of the rules of procedural fairness/natural justice s the Tribunal failed to:
a)put prejudicial matters to the Appellant, being the notation as to “drawings” of $52,562 in the 2011 tax return;
b)tell the Appellant that the Tribunal intended to attribute the whole of the drawings to the Appellant to adjust his taxable income from 1st July 2010; or
c)give the Appellant an opportunity to provide an explanation which may have affected the Tribunal’s decision to take the drawings as a whole and attribute them to the Appellant
The solicitor for the Registrar submitted that there was no breach of the rules of procedural fairness. He referred to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[45], where Northrop, Miles and French JJ held at 590-591:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material…
[45] (1994) 49 FCR 576
Their Honours went on to say at 592:
The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.
The Registrar submits that this was not a case where the Tribunal was required to provide the Appellant with an opportunity on the “adverse material”, because the material was obtained from the Appellant himself.
Further, this was not a case where the Tribunal was required to advise the Appellant of any adverse inferences that may be available from the drawing figures contained in the tax return, because such an inference was obviously open on the face of the document.
Mr Gouliaditis also submitted that an argument similar to that pressed by the Appellant was recently rejected by Judge Baker in Sagal & Child Support Registrar (SSAT Appeal)[46], where her Honour referred to the well-known High Court decision Kioa v West[47], saying at [97]:
Mason J (as he then was) noted that the key aspect of the requirement for procedural fairness is to bring to a person’s attention “the critical issue or factor” on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.[48]
[46] [2013] FCCA 51
[47] (1985) 159 CLR 550
[48] [2013] FCCA 51 at [97]
It was submitted that the issues relating to the decision under review were clear, being the Appellant’s financial circumstances. Ultimately, it was open to him to seek to be heard further with respect to the contents of his 2011 tax return estimates.
Conclusions
The Appellant relies on three Grounds of Appeal.
Ground 1
Ground 1 asserts that the Tribunal erred in law by making a finding of fact at [22] and [28] that the Appellant had repaid a $70,000.00 line of credit (incorrectly described by the Tribunal as an “overdraft”) when there was no evidence to support such a finding and that finding that the Appellant had repaid the $70,000.00 “overdraft” was a material finding in the Tribunal’s conclusion as to the Appellant’s “financial resources”.
Subsection 103X(3) of the Registration and Collection Act requires the Tribunal to provide a statement of reasons for its decision:
(3)Statements of reasons The SSAT must, within 14 days after making the decision, either:
(a) do both of the following:
(i) give reasons for the decision orally to the parties;
(ii) explain that the parties may request a written notice under paragraph (b) within 14 days after the notice is given under paragraph (1)(a); or
(b)give to each party a written notice (whether or not as part of the notice under paragraph (1)(a)) that:
(i) sets out the reasons for the decision; and
(ii) sets out the findings on any material questions of fact; and
(iii) refers to evidence or other material on which the findings of fact are based.
It appears clear that the Tribunal’s statement at [22] of the Decision that “the Tribunal placed reliance on the documentary evidence before it” should not be taken to mean that the Tribunal only relied on documentary evidence. If that were the case, there would have been no need for the Tribunal to have held a hearing. Subsection 103C(1) specifically provides that a party may make oral submissions to the SSAT.
There is no requirement under the Act that the Tribunal may only rely on documentary evidence to make findings on material questions of fact.
It is clear in this case that the Tribunal relied on the Appellant’s oral evidence, which was taken over the telephone.
The Appellant’s evidence to the Tribunal on this subject was that:
a)part of the business expenses that he incurred were funded from a redraw facility in his partner’s name;[49]
b)they were funded from St George Bank Business Centre and the parties were “basically living on an overdraft facility at the time”[50];
c)it was like a line of credit facility;[51]
d)the line of credit was in the Appellant’s partner’s name solely but the Appellant had access to it.[52]
[49] Transcript page 11 lines 18-20
[50] Transcript page 11 lines 26-27
[51] Transcript page 11 line 36
[52] Transcript page 12 lines 1-3
The Appellant told the Tribunal:
All the overdraft expenses have been paid and all the banking type fees. Yes. And the personal expenses, yes.[53]
[53] Transcript page 16 lines 40-41.
In my view, the Appellant’s oral evidence to the Tribunal was such that it was open to the Tribunal to make the findings that it did at paragraphs [22] and [28] of the Decision.
Whilst the Ground refers to the Tribunal “incorrectly” referring to an overdraft, the Appellant used that word on several occasions during his evidence to the Tribunal.
The Appellant has not demonstrated that the Tribunal erred in law by making a finding of fact for which there was no evidence. Consequently, Ground 1 set out in the Amended Notice of Appeal has not been made out.
Ground 2
Ground 2 asserts that the Tribunal had no jurisdiction to make a departure order I respect of the period 1st July 2010 to 30th June 2013 for the following reasons:
a)The Appellant applied on, 5th April 2011, for a departure order in respect of the period 1st May 2010 to 30th June 2010. That application is permitted by s.98B of the Assessment Act;
b)On 22nd June 2011 the Child Support Registrar made a determination under s.98S(1)(a) of the Assessment Act, in respect of the period 1st May 2010 to 29th July 2010 (“the original decision”);
c)The Appellant objected to the original decision (on) 16th October 2011, pursuant to s.80(1) of the Registration and Collection Act;
d)On 9th December 2011 the Child Support Registrar determined the objection to the original decision (“the objection decision”). The objection decision was restricted to the period 1st May 2010 to 29th July 2010;
e)On 6th January 2012, the Appellant lodged an Application for Review in the Tribunal in respect of the objection decision (“the decision”)’;
f)The Tribunal on review must do one of the things outlined in s.103S of the Registration and Collection Act in respect of “the decision”;
g)By s.103T of the Registration and Collection Act for “the purpose of reviewing a decision”, being the relevant Child Support Registrar’s “decision”, the Tribunal may exercise all the powers and discretions conferred on the Registrar;
h)In making a determination for the period 1st July 2010 to 30th June 2013 the Tribunal went beyond the scope in time of the relevant decision and was not, in doing so, reviewing the relevant decision but rather was making an entirely new decision.
The crux of the Appellant’s submissions on this ground is that on a review by the Tribunal of a decision of the Registrar, the Tribunal cannot go outside the decision that was the subject of the objection process.
The Registrar’s submission is that the Tribunal does have the power, as whilst the Tribunal’s jurisdiction depends on the existence of an objection decision on the question of whether a departure determination should be made, nothing in the legislation compels the conclusion that the SSAT’s jurisdiction is confined by the terms of the actual decision made on the objection (let alone the terms of the application for a departure determination).
I am in broad agreement with the Appellant’s contentions. It follows that the view put forward on behalf of the Child Support Registrar cannot be accepted.
It cannot be the case that, on a review of a decision by the Child Support Registrar on an objection, the Social Security Appeals Tribunal’s jurisdiction is entirely at large. If it were so, an applicant who wished to review a decision would have cause for apprehension about opening a “Pandora’s box”, because, if the Registrar is correct, the Tribunal would have the power to make decisions about matters that were not in issue between the parties.
The statutory scheme leading to the consideration of an application for review to the Social Security Appeals Tribunal is set out in Part VII the Child Support (Registration and Collection) Act. The statute provides for a clear and logical progression from the original decision to the appeal to the SSAT.
First, under s.80(1) of the Act:
(1)A person may lodge with the Registrar an objection in writing to a decision of the Registrar if:
(a)the decision is set out in an item in the following table: and
(b) the person is set out in that item.
The Registrar is obliged to consider the objection under s.87(1):
(1) If an objection is lodged under this Part, the Registrar must:
(a) consider the objection and:
(i) if paragraph 86A(1)(b) applies in relation to the objection – any grounds relied on to oppose or support the objection; or
(ii) otherwise – any notice lodged with the Registrar under section 86 or paragraph 86A(1)(a) in relation to the objection; and
(b) within 60 days after the objection is lodged, either:
(i) disallow the objection; or
(ii) allow it in whole or in part.
A person who is dissatisfied with a decision on the objection, the person may then apply to the SSAT for a review of the decision, under s.89(1):
(1)A person may apply to the SSAT for review of a decision of the Registrar if:
(a)the decision is set out in an item of the following table; and
(b) the person is set out in that item.
The powers of the SSAT on review are set out in ss.103S and 103T of the Act.
Subsection 103S(1) is relevant, and provides:
(1)If a person applies to the SSAT for review of a decision under this Part, the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new decision; or
(ii) send the matter back to the Registrar for reconsideration in accordance with any directions or recommendations.
Section 103T sets out the powers of the SSAT for purposes of reviews:
(1)Subject to the regulations, the SSAT may, for the purpose of reviewing a decision under this Part, exercise all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar.
(2)To avoid doubt, any limitation on the exercise of a power or discretion by the Registrar also limits the exercise of that power or discretion by the SSAT under this Part.
(3)The Regulations may specify provisions of this Act and the Assessment Act to which subsection (1) does not apply.
When the relevant sections are considered in this sequence, it appears clear that the decision to be considered is the decision that has come to it by the pathway of sections 80, 87 and 89.
If the Registrar’s contention is correct, however, the new decision that the SSAT is empowered to make under subparagraph 103S(1)(c)(i) could be a decision about a different child support period, rather than the child support period that was the subject matter of the Appellant’s objection.
However, s.103T(2) places a limitation on the power of the SSAT when making a decision on the review, being the same limitation that applies to the Registrar. It has not been submitted that the Registrar has the power to make a decision under s.87 on matters that were not the subject of the original objection.
Whilst I note that the Registrar relies on the Family Court decision of Dwyer v McGuire[54], it does not appear to me to be directly relevant to the issue to be decided.
[54] supra
Essentially, there are two decisions of this Court that do not appear to be able to stand together:
a)Child Support Registrar & MMB (SSAT Appeal); and
b)Kindree & CSR (SSAT Appeal).
The Registrar submits that for the Appellant to succeed, the Court must be persuaded that Kindree & CSR is plainly wrong. As for the decision in Child Support Registrar & MMB, the Registrar does not suggest that that decision is plainly wrong, but that it should be distinguished. The submission is that in MMB the Tribunal had gone off on a “frolic of its own” and had made a departure order when it had not been asked to do so.
With respect, it is not that simple.
In MMB, Sexton FM set aside a decision of the SSAT. The matter was unusual in that the Appellant was the Child Support Registrar. Counsel for the Registrar, Mr Kennett[55], in a written submission, stated:
The Registrar does not wish to contend for any particular outcome on the merits as between Ms (B) and Mr (J), but has commenced this appeal in order to clarify the powers of the SSAT.[56]
[55] Now of Senior Counsel
[56] (2007) 220 FLR 245 at [23]
In her decision, her Honour accepted the contention of counsel for the Registrar that the legislation imposes limits on the exercise of the Tribunal’s powers.[57]
[57] Ibid at [27]
The contentions that Sexton FM accepted were (relevantly):
Mr Kennett argues that the exercise of powers under Pt 6A was not properly part of reviewing the decision of the objections officer. Mr Kennett submits that:
a) The Tribunal was required by law to confine its review to the decision of the objections officer it was asked to review…
…
c) Instead of the Tribunal addressing the question addressed by the objections officer, of whether the power in s 60A(1) of the Assessment Act should be exercised, that is, whether or not Mr (J’s) income estimate was correct and should have been accepted by the Agency, the Tribunal treated Ms (B’s) application for review as a departure application under Part 6A of the Act and decided the case on the basis of its findings in relation to that departure application.
d) The Tribunal incorrectly identified the issues to be decided and embarked on the wrong inquiry.[58]
[58] (2007) 220 FLR 245 at [24]
Further in the decision, her Honour considered the effect of sections 103S and 103T of the Child Support (Registration and Collection) Act, referring specifically to the limitation imposed on the Tribunal by s.103T(2).[59]
[59] Ibid at [26]
Her Honour then went on to consider the decisions of Comcare v Burton,[60] Australian Securities and Investments Commission v Donald[61] and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed.[62]
[60] supra
[61] (2003) 136 FCR 7
[62] (2005) 143 FCR 314
Her Honour accepted the contention that Australian Securities and Investments Commission v Donald is:
…[A]uthority for the proposition that the Tribunal as the reviewing body could have exercised any of the powers the objections officer had available to her when addressing the question of whether Mr (J’s) estimate of income should have been accepted. It is not authority for the Tribunal to exercise powers beyond those which were available to the objections officer.[63]
[63] (2007) 220 FLR 245 at [29](253)
Her Honour also noted the decision in Minister for Immigration and Multicultural Affairs v Ahmed[64] where the Full Court held, in relation to a review by the Migration Review Tribunal:
The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate…Once that decision and its boundaries are identified one knows the subject matter of the statutory process of review.[65]
[64] Supra
[65] Supra at [36] cited in (2007) 220 FLR 245 at [30]
Her Honour then went on to hold at [32]:
However, I find the Tribunal was then required to confine its inquiry to that decision under review. As held by Finn J in Comcare v Burton:
The Tribunal is obliged to answer the same questions as were before the primary decision-maker and exercise its powers only in that setting.[66]
[66] Ibid [32]
With respect, it appears to me that the decision of Sexton FM in MMB is clearly on point and should not be distinguished. Moreover, it correctly sets out the law in this regard and should be followed.
By comparison, an examination of the decision in Kindree leads to the conclusion is that it is being put forward as having far greater weight than it was ever intended to have.
The relevant paragraphs of the decision are [19] and [20]:
19The appellant complains that the SSAT altered the child support assessment for the period 1 July 2008 to 31 December 2009, and this was not part of the objection decision being reviewed.
20.Section 98S(2) of the Child Support (Assessment) Act 1989 states that the power of the Registrar to vary an annual rate of child support is “not limited by the terms of the application”. Section 103T(1) of the Child Support (Registration and Collection) Act 1988 confers on the tribunal “all the powers and discretions that are conferred by this Act and the Assessment Act on the Registrar”. As a result, the tribunal stands in the shoes of the Registrar and therefore has the power to vary an annual rate of child support beyond the period referred to in the application.[67]
[67] (2020) FLC 98-052 at [19]-[20]
His Honour referred to the decision of MMB in the next paragraph of the judgment, but merely said “although I note the limits if the original decision is not pursuant to pt 6A, see: CSR & MMB & DEJ (SSAT Appeal) [2007] FMCAfam 944.
The decision shows that the Child Support Registrar was represented by counsel on the hearing of the appeal, although, curiously enough, the Solicitors for the respondent are referred to as “Child Support Agency”. Presumably, counsel for the Child Support Registrar would have argued the decision of MMB in some detail before his Honour, as it was a decision on an appeal brought by the Registrar “in order to clarify the powers of the SSAT”[68].
[68] (220) FLR 245 at [23]
I am not persuaded that the decision in Kindree should be followed insofar as it differs from the decision in MMB, which in my view states the law.
The Appellant has demonstrated that the Tribunal made a departure in respect of the period 1st July 2010 to 30th June 2013 when it had no jurisdiction to do so. Ground 2 in the Amended Notice of Appeal has been made out
Ground 3
Ground 3 asserts that the Tribunal denied the Appellant procedural fairness/natural justice in relying on the information in the Appellant’s 30th June 2011 tax return as to “drawings” of $52,562.00 without telling the Appellant it intended to rely on the drawings of $52,562.00 to adjust the Appellant’s taxable income for the period 1st July 2010 to 30th June 2013 and without giving the Appellant an opportunity to present further evidence on that issue.
I am not persuaded that the Appellant was denied procedural fairness. The 2011 tax return was his document. He knew what was in it. It was not a document obtained from another source that procedural fairness required him to be offered the opportunity to comment upon it. He had the opportunity to provide comments or explanations when he sent the document in to the Tribunal, but chose not do so.
There was some argument about the use of the term “drawings” as it was used in the return. There is no controversy about the meaning of the word “drawings”. The Appellant is a [occupation omitted] on his own account. He knew, or ought to have known, what drawings are.
There is no substance to this ground of appeal.
The Appellant has not demonstrated that the Tribunal erred in law by denying him procedural fairness in relying on the information in his 30th June 2011 tax return as to the amount described as “drawings”. Consequently, Ground 3 set out in the Amended Notice of Appeal has not been made out.
Orders
As the Appellant has been successful on one ground, it follows that the Appeal will be allowed. The matter will be remitted to the Social Security Appeals Tribunal to be determined according to law.
There are interlocutory orders in force, made on 23rd November 2012 (Ahern & Ahern & Anor (SSAT Appeal)[69]. Those Orders provide that:
a)The collection and enforcement of child support arrears accumulated up to and including 23rd November 2012 was stayed;
b)The sum of $5,000.00 held by the child Support Registrar as a result of the operation of a notice under section 72A of the Registration and Collection Act was to be retained by the Child Support Registrar until further Order of the Court; and
c)The Appellant is to pay to the Child Support Registrar the sum of $150.00 per month on account of child support.
[69] [2012] FMCAfam 1299
Submissions will be taken as to what consequential orders should now be made.
Costs
I note that costs orders are sought by the Appellant and the Registrar against each other, although no orders are sought against the First Respondent. Any party wishing to pursue an order for costs may do so by way of a written submission accompanied by an affidavit setting out the way the amount of costs is quantified, such affidavit to be filed and served within seven days. Any submission or affidavit in reply must be filed and served within a further period of seven days.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 3 June 2013
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