Angus and Lundie (SSAT Appeal)
[2008] FMCAfam 1142
•22 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANGUS & LUNDIE (SSAT APPEAL) | [2008] FMCAfam 1142 |
| CHILD SUPPORT – Appeal regarding child support – SSAT – procedural fairness – whether SSAT failed to provide appropriate opportunity to be heard – opportunity to fax document. |
| Child Support (Registration and Collection) Act 1988, s.110B Child Support (Assessment) Act 1989, s.117(4) |
| Appellant: | MR ANGUS |
| Respondent: | MS LUNDIE |
| File Number: | MLC 5959 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 16 October 2008 |
| Date of Last Submission: | 16 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 22 October 2008 |
REPRESENTATION
| Counsel for the Appellant: | The Appellant appearing in person |
| Counsel for the Respondent: | The Respondent appearing in person |
ORDERS
The appeal is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Angus & Lundie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5959 of 2008
| MR ANGUS |
Appellant
And
| MS LUNDIE |
Respondent
REASONS FOR JUDGMENT
The Appellant and the Respondent are subject to child support assessments for the benefit of their children. The parties have participated in a change of assessment process at the Child Support Agency, objection process, and subsequently sought a review at the Social Security Appeals Tribunal (SSAT). It is from the decision of the Social Security Appeals Tribunal the Appellant appeals in this case.
The Child Support (Registration and Collection) Act, provides for a right of appeal to this court:
110B [Appeals from decisions of SSAT] A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.
Importantly, appeals to this court from the decisions of the SSAT are limited to those based upon a ‘question of law’.
Ground of Appeal
The Appellant’s only ground of appeal is that:
… there was an error of law in that the process that the SSAT used to make their decision did not consider all information and paperwork regarding my (the appellants) cessation of employment, nor did it take into account any financial hardship I was and still am facing. A letter of my retrenchment was given to CSA but never acted upon nor taken into any decision with CSA or SSAT therefore I believe there was an error in the law in this decision.
The Tribunal, in a well structured decision, clearly identified the relevant grounds of the application before proceeding to make determinations of fact about each of those grounds. One of the grounds related to the income and earning capacity of the Appellant. He had ceased working as an [occupation omitted] as a result of a threatened or actual redundancy and purchased a [business omitted]. Following the purchase of the [business omitted] he appears to have made little or no income and paid no child support.
The Tribunal recounted the events leading to the Appellant ceasing his employment and made specific findings:
28. [The Appellant] told the Tribunal that he had been employed as an [occupation omitted] since June 1999. The business did not have much work and he was told that he would be made redundant. He decided to leave before that happened and he finished work on 7 December 2005. [Ms L] noted that [the Appellant] was not actually retrenched and that the business, [omitted] is still a viable business.
29. The Tribunal has no documentary evidence that [the Appellant] was made redundant. However, the Objections Officer stated in her decision dated 11 January 2008 that “[The Appellant’s] former employer has advised that [the Appellant] left that employment on 07.12.2005 because of retrenchment.” The Tribunal finds that [the Appellant] voluntarily left his employment at [omitted] on 7 December 2005 as he understood that he would be made redundant.
Failure to consider employer’s letter
The Appellant says that the Tribunal failed to have regard to a letter from his employer directed to him (provided to this Court on affidavit), advising that he would be made redundant on 1 October 2007 and that his last payment date was 7 December 2007. The Appellant says that he annexed a copy of this letter to his objection application and that he had forwarded it to the Tribunal but they had not received it in the faxed materials they had received from him. He says the Tribunal did not thereafter request a copy from him nor provide him with a fax number to provide the document to them. As a result he took no further steps and the Tribunal made their decision without reference to the document.
A review of the documents supplied by the tribunal indicates that the Child Support Agency had received the Appellant’s objection, a four page facsimile, apparently without a cover sheet. No copy of the letter from the Appellant’s employer was attached to the objection on the CSA file. The Appellant did not provide any copies of the material actually sent to the Child Support Registrar or a fax cover sheet that may have indicated additional pages.
At the Tribunal hearing the issue was discussed with the Tribunal Members (transcript p.19-21). The Tribunal advised the Appellant the Tribunal did not, in fact, have a copy of the retrenchment notice. There was then further discussion about the nature of the retrenchment process then and sometime later (transcript p.31-32) the Appellant advised the Tribunal that he did have a copy of the letter but couldn’t place his hand on it at that moment. He told the Tribunal that he was able to obtain it. He did not provide a copy of the letter to the Tribunal following the hearing.
The Appellant argued that as he was not given a further request by the Tribunal to send the document, nor a fax number he assumed that the Tribunal didn’t want to see the document. Although, he said that he had a fax number from when he had forward his other documents to the Tribunal.
Considering the matter as a whole it appears to me that he was made aware that the Tribunal did not have possession of the document and had an opportunity to forward it to the Tribunal but did not do so. Whilst the Tribunal did not seek out the document, this did not stop him from forwarding it to them. I am not persuaded that he was denied procedural fairness in this regard. Even if I am wrong in this respect, there are further reasons why this ground can not succeed.
The Tribunal’s findings with respect to the Appellant’s redundancy are entirely in accord with the oral evidence that he gave to the Tribunal, namely that he left his employment as he understood that he would soon be made redundant.
The case put today was that he left at the end of a period of notice, having actually been made redundant. The case put today is consistent with the document that he says that he forwarded to the Child Support Agency, but inconsistent with the evidence that he gave to the Tribunal in the hearing. As a result, on the material placed before the Tribunal, I am satisfied that the Tribunal did have a proper evidentiary basis for the findings that it made and indeed those findings were consistent with the oral evidence given by the Appellant at the time.
Further, whether he ended his employment on the understanding that he would be made redundant, or directly as a result of the redundancy, appears to me to make no difference to the outcome of this particular case. The substantive effect of the evidence is that he had good reasons for ceasing employment with the particular employer and that substantive point was accepted by the Tribunal. The issue that the letter was relevant to was an issue decided in the Appellant’s favour.
Whether the Tribunal considered hardship
The second issue that is articulated in the documents is that the Tribunal failed to consider any hardship to the Appellant as a result of its findings.
A review of the decision shows that the Tribunal Member set out s.117(4) of the Child Support (Assessment) Act and then proceeded to carefully consider each of the relevant factors under a separate heading. One of those factors was hardship. The Tribunal assessed the evidence that was relevant and addressed the relevant factors under s.117(4). It then explored the commitments of the parties and, in particular, the role of school fees. It addressed the issue of hardship briefly at (para. 103-106) before reaching a conclusion as to what would be a ‘just and equitable’ adjustment to the child support assessment.
It is important to note that the Tribunal carefully considered the Appellants financial affairs, and in particular the earnings of the business, and the benefits that he receives from the business, such as accommodation on the premises, some stock for private use (although accounted for in the financial statements of the business). Importantly there was no adequate explanation to the Tribunal of depreciation claimed at $10,076, nor a dramatic change in gross profits. The Tribunal also had regard to the fact that the Appellant had not attempted to find work of the type that he had undertaken until he left his employment.
It does not appear to me that it is open to say that the Tribunal failed to consider the matters relevant under s.117(4) in this case. Whilst, unfortunately, the Tribunal do not appear to have set out what precise weekly assessment would result from the change, the references to associated documents enable one to be satisfied that the Tribunal was aware of the ultimate outcome that would result from the changes to the assessment provided.
In these circumstances I am not satisfied that an error of law has been shown to have been committed by the Tribunal in the circumstances of this case.
I therefore dismiss the appeal.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 21 October 2008
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