ATREBE and ATREBE and Anor (SSAT Appeal)
[2011] FMCAfam 481
•19 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATREBE & ATREBE & ANOR (SSAT APPEAL) | [2011] FMCAfam 481 |
| CHILD SUPPORT – Appeal from the Social Security Appeals Tribunal – whether there was any error of law in the decisions of the Social Security Appeals Tribunal. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.89; 110B Child Support (Assessment) Act 1989 (Cth), ss.3; 4; 117; 117(2B); 117(4); 117(6); 117(7B); 117(8) |
| Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76 |
| Appellant: | MR ATREBE |
| First Respondent: | MS ATREBE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 3414 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 May 2011 |
| Date of Last Submission: | 12 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2011 |
REPRESENTATION
| Solicitors for the Appellant: | N. Ajaje (ANB Lawyers) |
| Solicitors for the First Respondent: | B. Soszyn (BJS Legal) |
| Counsel for the Second Respondent: | B. Kaplan |
| Solicitors for the Second Respondent: | L. James (Child Support Registrar) |
IT IS NOTED that publication of this judgment under the pseudonym Atrebe & Atrebe & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
SYC 3414 of 2010
| MR ATREBE |
Appellant
And
| MS ATREBE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from two decisions of the Social Security Appeals Tribunal (“the Tribunal”).
The Tribunal decisions arose from objections lodged by the Appellant in respect of child support assessments made by the Child Support Registrar in respect of his daughter, M, born [in] 2007.
Background
Historically the Appellant separated from the First Respondent on
26 November 2007 and a child support liability was entered by the Child Support Agency (“the CSA”) on 21 December 2007. That assessment resulted in the Appellant’s annual income to pay child support as $99,898 based on the Appellant’s 2006/2007 income tax return. The annual rate of child support was assessed to be $15,345.
On 8 January 2008, the Appellant notified the CSA that his estimated income was now in the order of $40,326. Accordingly his annual child support was reassessed to $4,622 based on that estimated income.
On 26 February 2008, the First Respondent applied for a departure order from that administrative assessment on the basis that the Appellant’s estimated income did not properly reflect his earning capacity, income, property and financial resources.
On 6 May 2008, a senior case officer of the CSA adjusted the Appellant’s annual income to $68,000 and reassessed the annual child support as $9,600. The senior case officer noted that the Appellant had earlier offered to pay $800 per month by way of child support which equated to $9,600 per annum, equivalent to an assessment based on an annual income of around $68,000.
On 7 July 2008, the Appellant lodged an objection to the decision made on 6 May 2008. On 24 October, 2008 the CSA reconsidered the departure application and disallowed the Appellant’s objection.
On 1 December 2009, the Appellant lodged an appeal to the Tribunal in respect of the decision of the CSA made on 24 October 2008. On
29 January 2010, the Tribunal granted the Appellant an extension of time to proceed with the appeal. That appeal was given a case number SC236332 and is the subject of one of the decisions which is the subject of the present appeal before this Court.
However, prior to the Appellant’s lodgement of his appeal to the Tribunal on 1 December 2009, on 1 August 2009 his child assessment was reassessed based on information by him of a taxable income of $23,917 providing for an annual child support rate of $869.
On 14 September 2009, the Appellant and the First Respondent each applied for departures from that decision.
On 11 November 2009, a senior case officer re-adjusted the Appellant’s annual income to $68,000.
The Appellant lodged an objection in respect of that decision and on
8 January 2010 the CSA reassessed his annual income as $110,000. The decision maker stated that the figure of $110,00 was based on the Appellant’s 2006/2007 income tax return of $99,898 in that year and the 2008/2009 gross sales for [F] Pty Ltd being $1.4m and the decision maker determined that the Appellant could access 10% of that income.
On 29 January 2010, the Appellant appealed that decision to the Tribunal. That Tribunal appeal was given a case number SC236995 and is also the subject of the present appeal before this Court.
Both appeals were heard by the Tribunal on 21 April 2010. Both appeals relied on the same financial material and evidence from the Appellant and the First Respondent.
Both appeals resulted in the Appellant’s income being assessed as $110,000 based on evidence about his earning capacity, income, property and financial resources resulting in an annual rate of child support of $13,069.
The Tribunal’s decision from case number SC236332 resulted in $110,000 being applied for the period from 10 April 2008 to 30 June 2008 and $68,000 for the period 1 July 2008 to 30 June 2009.
The Tribunal’s decision from case number SC236995 resulted in the figures applying for the period 13 November 2009 to 30 June 2012.
It is unclear why the Tribunal sought to deliver its reasons in two separate Tribunal decisions rather than one decision that dealt with all issues that it had decided to hear on the same day and which arose from substantially the same evidence. The Second Respondent was unable to cast any light on that issue.
The decisions are substantially similar. The Appellant’s solicitor prepared a schedule of differences. I intend to have regard to both decision records together in considering each of the grounds of appeal. I am satisfied that both Tribunal decisions considered the same issues, namely, the Appellant’s disagreement with the Tribunal’s findings in respect of his financial position and the Tribunal’s assessments of child support. I am also satisfied that the Tribunal had regard to evidence in one decision as evidence in the other decision where that evidence was relevant to the Appellant’s specific complaints.
The relevant law
Section 110B of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) makes clear that an appeal to this Court in respect of a decision of the Social Security Appeals Tribunal is on a question of law.
Section 117 of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) sets out the relevant matters to be considered by the Tribunal in a review commenced pursuant to s.89 of the Registration and Collection Act.
I accept the submission of counsel for the Second Respondent,
Mr Kaplan, on the relevant law that should guide this Court in conducting judicial review of the Tribunal’s decisions where they arise on appeal under s.110B of the Registration and Collection Act, as follows:
“32. Section 110B of the Registration and Collection Act provides that an appellant may only appeal to the Court “on a question of law”. This provision was introduced by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) and is in almost identical terms to sub-section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the only difference being the references to the tribunals whose decisions may be appealed and the court to which the appeal lies. Indeed, Halligan FM, in LDME & JMA (SSAT Appeal) (2007) FLC 98-034 recognised the connection between the two statutory schemes, observing (at [21]) that, “in determining the meaning and operation of provisions of Division 3 [of Part VIII of the Registration Act, which includes section 110B], decisions as to the meaning and operation of equivalent provisions of s 44 will provide valuable guidance.”
33. An appeal “on a question of law”, as understood in section 110B, is more limited in scope than an appeal which involves a question of law: see Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [31] per Weinberg, Bennett and Edmonds JJ and the authorities cited therein. Where an appeal lies on a question of law, the subject matter of the appeal is the question or questions of law. As the High Court of Australia said in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, this is so because sub-section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), like section 110B of the Registration and Collection Act, is concerned to ensure that the merits of the case are dealt with, not by this Court, but by the relevant tribunal, a “distribution of function [which] is critical to the correct operation of the administrative review process.” For a party simply to assert that a tribunal has “erred in law” in making a particular finding is not to state a question of law (see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at [13]-[15] per Branson and Stone JJ); the particular question of law which is said to arise from the decision of a tribunal must be “stated with precision as a pure question of law”: Birdseye at [18]; see also Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76 at 77.
34. In LDME, Halligan FM echoed these observations in the context of section 110B appeals (at [29]):
“The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare v Etheridge [2006] FCAFC 27 at [14] per Branson J, with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s 110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.””
The Appellant’s solicitor, Mr Ajaje, did not wish to be heard against
Mr Kaplan’s summary of the relevant law.
The Tribunal’s decisions
The Tribunal’s decisions are accurately summarised by Mr Kaplan in his written submissions as follows:
“18. On 21 April 2010, the date of the hearing, the Applicant provided a ‘Statement of Financial Circumstances.’ The Applicant had indicated to the Tribunal, on this date, that “he had not received the papers for this appeal”. These were provided to him and he did not object to proceeding with the hearing on 21 April 2010.
19. The Tribunal considered first the Applicant’s contention that a departure from his administrative assessment ought to be made on the ground that the assessment would result in an unjust and inequitable level of child support due to the high contact costs involved in enabling him to spend time, or communicate, with the child. M. As indicated earlier in these submissions, sub-section 117(2B) of the AssessmentAct makes clear that costs can only be regarded as “high” if they exceed five per cent of the parent’s adjusted taxable income.
20. The Applicant gave evidence that, from January to March 2009, he paid $300 per week to have supervised contact with his daughter at the [C] Contact Service. He asserted that he would visit his daughter for two hours on Mondays, Thursdays and Saturdays. He further asserted that this cost him $45 per hour on Mondays and Thursdays and $60 per hour on Saturdays.
21. This evidence, however, contradicted that which had been provided by the [C] Contact Service. In a schedule of fees sent to the First Respondent by cover of letter dated 22 September 2009, it is stated that the fee for supervised contact is $10 per hour and $5 per hour for every changeover/changeback. The Applicant, in response, asserted that “he can provide receipts to show that he paid this amount”, but the Tribunal refused to accept this evidence and indicated to him that “he should have provided all relevant evidence at least 14 days before the hearing in the interest of fairness to all parties.”
22. Having considered the material before it, the Tribunal preferred the evidence of the [C] Contact Service (which, the Tribunal noted (at [31]), was consistent with information available on their website) over that of the Applicant. The Tribunal found that the Applicant paid $60 per week for supervised contact from January to March 2009, totalling $3,120 per annum. Given that this amount was not more than five per cent of the Applicant’s adjusted taxable income (which, in 2009, was $68,000), the Applicant’s costs of spending time, and communicating, with his daughter was not “high”, as that term is understood in sub-section 117(2B) of the Assessment Act.
23. The Tribunal then went on to consider evidence from the Applicant and First Respondent in respect of the Applicant’s income, property, financial resources and earning capacity. The Tribunal’s findings included the following:
(a) the Applicant’s taxable income for 2006/2007 was $99,898, when he was “fully involved” with a [omitted] business, [F] Pty Ltd ([F]);
(b) the Applicant was a director and shareholder of [F] until 1 January 2008, at which time his younger brother took over as director and he (the Applicant) became a part-time employee of that company and [L] Pty Ltd ([L]), a company incorporated by his brother, working at least three days per week in 2008 and 2009 and five to six hours per week in 2010;
(c) the Applicant continued to have an active and ongoing role in [F] and [L] after he ceased being a company director in January 2008; consequently, the Tribunal did not accept that the Applicant’s income from his involvement in the company was accurately reflected by his disclosures to the Tribunal;
(d) that bank statements tendered by the Applicant, together with reports from the Australian Transaction Reports and Analysis Centre, demonstrated that “large amounts of cash deposits and withdrawals and international funds transfers have been transacted through the accounts of [the Applicant] and [F] throughout the period September 2006 to October 2008” and that he had borrowed “substantial amounts of money” from family members in Australia and overseas;
(e) annualised cash expenses of [F] were well in excess of $900,000, given that the total value of cash withdrawals of more than $10,000 between 1 January and 30 June 2008 was $452,000;
(f) the Applicant had available to him a regular supply of funds which were able to be used by him to undertake annual overseas trips;
(g) (having considered the letter dated 18 March 2010 from the Applicant’s psychologist, Mr/Ms G) – the Tribunal did not accept that the Applicant was unable to work full-time for health reasons;
(h) Centrelink had not exempted the Applicant form looking for work for medical reasons;
(i) the Applicant was studying full-time at university in 2009 and, on his evidence, attended all his classes;
(j) there was no evidence before the Tribunal to support the Applicant’s claim that he had withdrawn from all of the university subjects in which he had enrolled in 2009;
(k) the Applicant’s capacity to undertake full-time study and part-time work in 2009 demonstrated that he was capable of full-time work;
(l) the Tribunal did not accept that the Applicant’s contact arrangements with his daughter would affect his capacity to undertake full-time work in his industry, his meetings with his daughter being short and on days chosen by him; and
(m) the Applicant’s earning capacity was greater than the amount reflected in his taxable income.
24. In the light of the evidence before it, the Tribunal determined that the Applicant’s 2007/2008 estimated income of $40,326, and his 2008/2009 taxable income of $23,917, were not accurate reflections of his true income, property and financial resources.
25. As regards the Applicant’s earning capacity, the Tribunal concluded that, from January 2008, the Applicant had reduced his hours of work below the full-time standard and had changed his working pattern, thereby satisfying sub-paras 117(7B)(a)(ii) and (iii) of the Assessment Act.
26. The Tribunal was also satisfied that, based on the limited medical evidence before it, the evidence indicating that the Applicant could undertake full-time study and part-time work, and his limited contact with his daughter on days of his own choosing, the Applicant’s decision to reduce his hours or change his working pattern was not justified on the basis of his caring responsibilities or his state of health. Sub-paragraph 117(7B)(b), too, was satisfied.
27. It was also found that the Applicant’s evidence was insufficient to rebut the presumption in sub-para 117(7B)(c); that is to say that he could not demonstrate that it was not a major purpose of his decision to reduce his hours and change his working pattern to reduce his child support liability.
28. The Tribunal further found that the Applicant’s earning capacity was similar to his 2006/2007 adjusted taxable income (prior to leaving his post as director of the companies).
29. Having determined that, in the special circumstances of the case, the Applicant’s administrative assessment would result in an unjust and inequitable level of child support (that is, having found that there were grounds to depart from the assessment based on sub-paras 117(2)(c)(ia) and (ib)), it fell for the Tribunal to consider whether it would have been just and equitable to make a departure determination. It was required to consider the various factors in sub-section 117(4) of the Assessment Act and it did so, placing emphasis on the child’s needs, education, income and assets; the parties‟ income, assets, and financial resources; the parties‟ earning capacity; and the hardship that would be caused to (the child) M and the Applicant and First Respondent by the making of a departure determination. It also determined that it would be otherwise proper, as understood in sub-section 117(5), to depart from the administrative assessment.
30. The Tribunal affirmed the two decisions under review, varying his annual rate of child support payable for 10 April to 30 June 2008 to $9,600 and setting his adjusted taxable income at $68,000 for the period 1 July 2008 to 30 June 2009, and increasing his adjusted taxable income to $110,000 for the period 13 November 2009 to 30 June 2012.”
The proceeding before this Court
On 4 March 2011, the Appellant filed two affidavits. The first affidavit was of the Appellant sworn on 3 March 2011. The second affidavit was from the brother of the Appellant and sworn on 1 March 2011.
On 17 March 2011, the First Respondent filed an affidavit of the First Respondent sworn on 17 March 2011.
Three further affidavits were filed by the Appellant on 1 April 2011 in reply to the First Respondent’s affidavit. They were further affidavits by the Appellant and his brother, both sworn on 31 March 2011 and an affidavit from Mr Z, sworn on 30 March 2011. Mr Z is the father of the Appellant’s present wife.
On 29 April 2011, the Appellant’s solicitor filed a Notice of Intention to Withdraw as Lawyer. However, at the commencement of the hearing before this Court on 12 May 2011, leave was granted to the Appellant’s lawyer to file by consent, a Notice of Appearance and further submissions in support of the Appellant’s Notice of Appeal to this Court.
Further, at the commencement of the hearing, the Second Respondent sought to file in Court a Response, a copy of which had been sent to the other parties on 3 May 2011. The Appellant’s solicitor Mr Ajaje objected to leave being granted to the Second Respondent to file in Court and rely upon the Response. The Response stated as follows:
“1. The appeal be dismissed.
2. The Applicant pay the costs of the Second Respondent”
Mr Ajaje did not submit that the Appellant was taken by surprise or suffered any prejudice by the filing in Court of the Second Respondent’s Response. The Second Respondent made plain to the Court and to the other parties at the directions hearing on 4 February 2011 that it did not support any of the grounds of the Appellant’s Notice of Appeal and contended that there was no error of law in the Tribunal’s decisions. In the circumstances, leave was granted to the Second Respondent to file in Court and rely upon the Response.
Mr Ajaje sought to read each of the five affidavits referred to above. The First Respondent was represented by Ms Soszyn, solicitor, and the Second Respondent was represented by Mr Kaplan of counsel. Both respondents objected to all the affidavits in their entirety on the basis that they sought to revisit issues addressed by the Tribunal and otherwise to provide new evidence in support of the Appellant’s claims before the Tribunal.
The Appellant’s affidavits either restate claims made before the Tribunal or purport to introduce new evidence.
The Notice of Appeal does raise an allegation of a denial of procedural fairness on the part of the Tribunal where the Tribunal exercised its discretion to refuse the Appellant an opportunity to rely on further material.
The Appellant’s complaint appears to arise from the Tribunal’s decision to accept evidence before it from the [C] Contact Service dated
22 September 2009 of the costs of supervised contact by the Appellant with M, rather than the Appellant’s evidence of the costs of contact. The Appellant stated at that time that he wished to provide receipts to show the amounts he paid. However, in accordance with the Tribunal’s rules, the Tribunal stated in its decision records that it reminded the Appellant that he should have provided all relevant evidence at least
14 days before the hearing in the interests of fairness to all parties, and refused to accept the receipts.
However, there was no evidence provided by the Appellant to this Court to suggest that he made any complaint to the Tribunal in respect of the further material he was denied an opportunity to rely upon. There is no evidence before this Court of any complaint made by the appellant either during the hearing or thereafter. Moreover, the Tribunal’s decisions make clear that at the hearing, the Appellant was allowed to provide a statement of financial circumstances.
The Appellant’s affidavit evidence went only to the nature of the evidence he would have provided if he were given the proper opportunity. The evidence in the Appellant’s affidavits do not suggest that the evidence that he wished to provide to the Tribunal was otherwise not available to him 14 days before the hearing or that he offered any explanation as to why he had not filed the material in accordance with the Tribunal’s time requirements. In his affidavit, sworn on 1 March 2011 and filed on 4 March 2011, the Appellant makes the bare assertion that contact cost him in excess of $300 per week.
In the circumstances, there was no material of any relevance to the issue before this Court either in the affidavit of the Appellant sworn on 3 March 2011 or the affidavit of his brother sworn on 1 March 2011. The Court did allow the Appellant to read the first sentence of paragraph 112 and the whole of paragraph 113 of his affidavit sworn on 3 March 2011. Otherwise all the affidavits were rejected.
The other three affidavits were filed by the Appellant in response to an affidavit of the First Respondent sworn on 17 March 2011 and which was not read by the First Respondent. The Appellant nevertheless pressed his application to read those affidavits. The affidavits were rejected on the basis that they responded to the First Respondent’s affidavit.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Appellant provide any evidence to this Court to suggest that the Tribunal’s decision records are not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Appellant and the First Respondent. The Tribunal’s decision records also noted its exchanges with the Appellant and the First Respondent as well as its summary of other evidence.
The Notice of Appeal
The grounds of the Notice of Appeal are as follows:
“1. That the Social Security Appeals Tribunal erred in not considering each of the matters in subsection 117(4) of the Child Support (Assessment) Act 1989 (Cth) in relation to the applicant and the respondent.
2. That the Social Security Appeals Tribunal erred in not granting consent to the applicant to produce evidence of the high costs involved in enabling the applicant to spend time with or communicate with the child.
3. That the Social Security Appeals Tribunal erred in applying the following International Funds Transfer Instruction to the appellant:
a) 2011/2007 of amount $137,300
4. That the Social Security Appeals Tribunal erred in not taking into account the substantial loan and indebtedness of the applicant to his uncle in Lebanon and the repayment commitments attached to this loan.
5. That the Social Security Appeals Tribunal erred by not taking into account relevant considerations in relation to the International Funds Transfer Instructions.
6. That the Social Security Appeals Tribunal erred in placing improper and undue reliance on statements of First respondent to the Child Support Agency.
7. That the Social Security Appeals Tribunal erred in not taking into account the earning capacity of the First respondent.
8. That the Social Security Appeals Tribunal erred in not taking into account the availability of child minding services of the First Respondent’s mother and the First Respondent’s sister who reside in the same residence in relation to the First respondent’s earning capacity.
9. That the Social Security Appeals Tribunal erred in not taking into account the contributions by the First Respondent’s mother and the First Respondents’ sister to the rental of the residence in which the First Respondent reside.
10. That the Social Security Appeals Tribunal erred in determining that the purpose of the applicant’s decision in resigning from Office was to affect the level of child support assessed.
11. That the Social Security Appeals Tribunal failed to take into account the applicant’s decline in health and unsuitability for the office as director or officeholder of [F] Pty Ltd and [L] Pty Ltd under the Corporations Act 2001 (Cth).
12. That the Social Security Appeals Tribunal erred in failing to take into account the period of time in which the applicant was a full time student, the transition thereafter of the applicant to becoming a part time student.
13. That the Social Securities Appeals Tribunal erred in its determination of the applicant’s earning capacity.
14. That the Social Securities Appeals Tribunal erred in the method by which it extrapolated the applicant’s income for the following periods.
a) 10 April 2008 to 30 June 2008;
b) 1 July 2008 to 30 June 2009;
c) 13 November 2009 to 12 November 2011;
d) 13 November 2009 to 40 June 2012 (sic).
15. That the Social Securities Appeals Tribunal erred in failing to take into account the following relevant considerations in determining the applicant’s earning capacity:
a) General economic factors;
b) Macroeconomic factors including the effect of the recent Global Financial Crisis on the construction industry;
c) Microeconomic factors including the effect of the insolvency of head contractors in the industry from whom payment to the business was required;
d) That the business is not immune from external major economic factors;
e) The effect of the transition of the business to new officeholder.
16. That the Social Security Appeals Tribunal erred in finding that the applicant would not suffer hardship as a result of the Tribunal’s decision.
17. That the Social Security Appeals Tribunal erred in finding it was “just and equitable” to depart from the administrative assessment in accordance with the Tribunal’s decision.
18. That the Social Security Appeals Tribunal erred in finding “it was otherwise proper” to depart from the administrative assessment in accordance with the Tribunal’s decision.”
The Appellant filed written submissions on 27 April 2011 in support of the Notice of Appeal. However the submissions are not expressed in a helpful or particularised manner. They do not address each ground seriatim. They state general propositions of law unrelated to particular grounds. The submissions are peppered with references to complaints made in the grounds but are not addressed in any cohesive and logical manner. One cannot readily distil the submissions relevant to each ground without great difficulty and with no certainty. The Appellant also filed further submissions in Court at the commencement of the hearing which seek briefly to respond to the respondents’ submissions. Again, they do not address the grounds of the Notice of Appeal.
The Appellant’s solicitor addressed each ground in oral submissions before the Court and it is those submissions which have been considered by the Court. At the conclusion of his oral submissions, the Appellant’s solicitor, Mr Ajaje, confirmed that he had nothing further to say in support of each of the grounds of the Notice of Appeal upon which the Appellant relied, beyond the oral submissions he made to the Court in support of the grounds pressed.
Ground 1
Ground 1 asserts that the Tribunal did not consider each of the matters in s.117(4) of the Assessment Act in relation to the First Respondent.
I asked the Appellant’s solicitor which of the subsections of s.117(4) of the Assessment Act the Appellant alleged was not considered by the Tribunal. Mr Ajaje referred to s.117(4)(d), s.117(4)(da) and s.117(4)(g)(ii)(A).
Section 117(4) of the Assessment Act relevantly states as follows:
“ 117 (4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
…
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
…
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection(10)) by the making of, or the refusal to make, the order.”
In each of its decisions, the Tribunal set out the entirety of s.117(4) of the Assessment Act. The Tribunal also stated the relevance of that section. The Tribunal stated that, having been satisfied that there is a ground to depart from the administrative assessment of child support, the next step for the Tribunal was to consider whether it is just and equitable to do so. The Tribunal noted that in deciding whether it is just and equitable, the Tribunal must have regard to the matters set out in s.117(4) of the Assessment Act.
The Tribunal set out the principle as espoused by the Full Court of the Family Court in Gyselman & Gyselman (1992) FLC 92-279; 15 Fam LR 219 at 240 as follows:
“However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section [117](2) and some of the paragraphs in subsection (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essentially part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section(2)”.
The Tribunal noted the terms of s.3 of the Assessment Act that provides that parents have a primary duty to maintain their children and that this duty is higher than other obligations except the obligations necessary to maintain themselves and any other person they are obliged by law to support.
The Tribunal also referred to the principle in s.4 of the Assessment Act that the principle object of the Assessment Act is to ensure that children receive a “proper level of financial support” from their parents.
The Tribunal referred to the particular objects of the Assessment Act that include that the level of financial support to be provided by parents to their children is determined by their capacity to provide financial support and that the level of financial support should be determined in accordance with the cost of the children. In the Tribunal’s decision from case number SC236995, the Tribunal referred further to the “proper needs of the child” and the “direct and indirect costs incurred by the carer” as reflected in s.117(6) and s.117(8) of the Assessment Act.
The Tribunal stated that it had considered the matters set out in s.117(4), s.117(6) and 117(8) of the Assessment Act.
In accordance with the evidence before it, the Tribunal accepted that there is no evidence that M has special needs and that neither parent suggested that M has any income, earning capacity assets or financial resources that could be used for her own support.
The Tribunal also accepted that the First Respondent incurs most of the costs for M as she is the primary carer. The Tribunal noted that M’s necessary needs and costs were set out in the First Respondent’s statement of financial circumstances.
The Tribunal accepted that the First Respondent’s capacity to work full time is limited given her caring responsibilities and ultimately found that she did not have any unused earning capacity. The Tribunal found that the First Respondent relied on Centrelink payments to support herself and M, and that her income just met her stated expenses. The Tribunal found that, in the circumstances, the First Respondent needed additional assistance from the Appellant to support M.
The Tribunal noted that on the subject of the First Respondent’s financial circumstances, the Appellant had no comment to make.
The Tribunal noted the First Respondent’s evidence that she was currently receiving single parenting payments, a pharmaceutical allowance and family tax benefits totalling $601.30 per fortnight, out of which is deducted a New South Wales housing payment of $188.50. The Tribunal noted that the First Respondents evidence that she lives on a tight budget and that M’s needs and wants are increasing. The Tribunal noted the First Respondent’s evidence that she would like to be able to buy more things for M but that the Appellant’s unwillingness to assist her with child support made that difficult. The First Respondent stated that she lived with her mother and sister and that this made her budget more manageable.
The Tribunal found that the First Respondent’s statement of financial resources was a true reflection of her financial position. The Tribunal accepted that her financial circumstances were as reflected by her statement of financial circumstances provided to the Tribunal in response to the pre hearing conference directions.
In light of the evidence to which the Tribunal has referred in respect of the First Respondent’s financial position and in light of the concession by the Appellant that he had no disagreement with her evidence, I am satisfied that the findings of the Tribunal in respect of the First Respondent’s financial position were made with regard to her income, property and financial resources and her earning capacity. I am satisfied that those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. In the circumstances, there has been compliance by the Tribunal with s.117(4)(d) and s.117(4)(da) of the Assessment Act.
The Appellant also alleged that the Tribunal failed to consider any hardship that would be caused to the Appellant if the proposed orders were made. The solicitor for the Appellant submitted that the Tribunal failed to appreciate that the Appellant’s capacity to borrow was not an asset and that the Tribunal had failed to consider the level of the Appellant’s indebtedness and his capacity to repay that indebtedness. The Appellant’s solicitor submitted that the Tribunal considered only the Appellant’s income and not his liabilities.
In considering the hardship that the Appellant may suffer in the event of such order, the Tribunal identified in some considerable detail the evidence given by the Appellant of the hardship that he stated that he would suffer if the proposed decision was made. As stated above, there was no evidence placed before this Court in the nature of a transcript of the Tribunal’s hearing to suggest that the Tribunal’s summary of its exchanges with the Appellant and the evidence provided by the Appellant was in any way inaccurate.
The Tribunal concluded that in consideration of all the Appellant’s financial circumstances, he would not suffer hardship as a result of the decision proposed. The Tribunal also accepted that while he may want to improve his future employment opportunities by undertaking further studies, that could not take precedence over his obligation to support his child.
The Tribunal concluded that greater hardship would be caused to the First Respondent and M if the Appellant’s child support liability as assessed because the First Respondent has primary care of M.
The Tribunal further stated that “after consideration of all the factors in s.117(4), and with particular emphasis on sub paragraphs 117(4)(a),(b),(d), (da) and (g), the Tribunal is satisfied that it is just and equitable to depart from the administrative assessment in this matter.”
The Tribunal’s findings in respect of s.117(4) of the Assessment Act were open to it on the evidence and material before it and for the reasons it gave.
In the circumstances, I am satisfied that the Tribunal has had proper regard to any hardship that would be caused to the Appellant in considering whether it would be just and equitable to make the orders it proposed to make.
Accordingly, Ground 1 does not establish an error of law.
Ground 2
Ground 2 asserts that the Tribunal erred in not granting consent to the Appellant to produce evidence of the high costs involved in enabling the Appellant to spend time with or communicate with M.
In Ground 2, Mr Ajaje also asserted that the Tribunal denied the Appellant procedural fairness in refusing to allow him to produce receipts in support of his allegation as to the cost of contact.
Section 8 of the SSAT Child Support Review Directions 2009 (Cth) (“the Directions”) provides that “[a] party…must give the Tribunal at least 14 days before a hearing, all documents on which the party intends to rely at the hearing”. Section 11 of the Directions provides that “[i]f a party gives a document to the Tribunal less that 14 days before the hearing, the Tribunal may only consider the document with the agreement of the presiding member”.
The Second Respondent’s counsel set out the explanatory statement to the Directions as follows:
“Section 8 requires the person to provide all documents on which they intend to rely at the hearing, at least 14 days before the hearing. Procedural fairness requires all parties to have a reasonable amount of time to consider all relevant documents. Section 8 provides guidance in this regard as information disclosed only, say, on the day of the hearing places the other parties and the Tribunal members at a substantial disadvantage. Adherence to Section 8 should substantially reduce this occurring and avoid delays and adjournments while documents are copied and exchanged.”
There is no evidence before this Court to suggest that there was any reason why the Appellant was not able to provide that material in accordance with the Tribunal’s time requirements.
In the circumstances, where that material was provided on the day of the hearing, there was no error in the Tribunal’s exercise of discretion in refusing the Appellant the opportunity to rely on that material.
The Tribunal’s decision records make clear that the reason for the exercise of the Tribunal’s discretion was in the overall interests of fairness where that material should have been made available to the First Respondent at least 14 days prior to the hearing.
Mr Ajaje further submitted that the Tribunal should have made its own inquiries about the cost of contact. In support of that submission,
Mr Ajaje referred the Court to PJ v Child Support Registrar (SSAT Appeal) (2007) 38 Fam LR 31 per Riethmuller FM at [37] in which there was no evidence before the Tribunal in respect of a particular issue.
However, in the case before this Court, the Tribunal had evidence before it from the [C] Contact Service of the cost of contact. The Tribunal considered the oral evidence given by the Appellant of his assertions of the cost of contact. However, the Tribunal preferred the material before it from the [C] Contact Service website. It was open to the Tribunal to accept that information as evidence of the cost of contact.
In the circumstances, no duty arose on the part of the Tribunal to make further inquiries about the cost of contact.
Mr Ajaje also complained that at the hearing the Appellant told the Tribunal that he had not received the appeal papers for appeal/case number SC236332. The Tribunal stated in its decision records that they provided him with a copy of the papers and that the Appellant did not object to proceeding at the hearing.
Mr Ajaje submitted that the Tribunal denied the Appellant procedural fairness by not giving him further time to consider those papers. The Tribunal’s decision records do not suggest that the Appellant sought any further time to consider those papers and there is no evidence before this Court to suggest that he made any such request.
In any event, the Appellant made the same complaint in both appeals to the Tribunal about the assessment of child support, although for different periods. He relied on substantially the same evidence and submissions and the Tribunal heard both appeals together.
In the circumstances, no error has been demonstrated in the exercise of the Tribunal’s discretion to proceed with the hearing following the provision by it to the Appellant of the appeal papers in case number SC236332 at the hearing.
In the circumstances, there was no denial of procedural fairness to the Appellant arising from any exercise of the Tribunal’s discretion.
Accordingly, Ground 2 does not establish an error of law.
Ground 3
Ground 3 asserts that the Tribunal erred in applying an amount of $137,300 to the Appellant as funds available to him. The evidence of this amount was part of a number of international funds transfer instructions provided by the Appellant.
The particular transaction referred to, dated 20 November 2007, described in transaction type as “outgoing”, was for the amount of $137,300 and the beneficiary customer was “unspecified”. The prior transaction appeared to be an incoming loan to the Appellant, dated
24 May 2007, from his uncle in Lebanon in the amount of $236,650. The Tribunal accepted that the source of the $137,300 was earnings from the company [F] Pty Ltd and may have been repayment of a loan to the Appellant by his uncle to purchase a house in Lebanon.
The Tribunal noted that bank statements tendered by the Appellant, together with various other financial reports, including international funds transfers, were transacted through the accounts of the Appellant and [F] Pty Ltd throughout the periods of September 2006 to October 2008. The Tribunal found that those documents showed that the Appellant has, on his evidence, been able to borrow substantial amounts of money from family members both within Australia and Lebanon.
The Tribunal found it “incongruous” that a person of the Appellant’s alleged low income and minimal property and financial resources would have access to substantial amounts of money or that he would be able to repay large loans or undertake annual overseas trips.
Ultimately, the Tribunal did not accept that the Appellant’s 2008/2009 stated income of $23,917 was an accurate reflection of his true income, property and financial resources.
The Tribunal considered and rejected the Appellant’s assertion that he was unable to work full time because of his health or his studies.
The Tribunal also had regard to the presumption arising from the operation of s.117(7B)(c) of the Assessment Act that the child support assessment was a major purpose of the Appellant’s decision to stop working full time and cease acting as a company director of [F] Pty Ltd. The Tribunal noted that pursuant to s.117(7B)(c), the onus was on the Appellant to rebut that presumption. Section 117(7B) is as follows:
“(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.”
The Tribunal found that the Appellant’s decision to reduce his working hours and cease being a company director in January 2008 coincided with the commencement of his child support liability in December 2007. The Tribunal found that he was unable to provide sufficient evidence to demonstrate that he was motivated by any deterioration in his state of health or caring responsibilities.
The Tribunal found that the Appellant had an ongoing role in [F] Pty Ltd even after he ceased being a director and shareholder. The Tribunal found that his earning capacity was not limited by his state of health or his caring responsibilities.
Further, the Tribunal had regard to his taxable income before he ceased being a director in 2006/2007 as $99,898. The Tribunal was satisfied that the Appellant continued to have a similar earning capacity. The Tribunal found that the Appellant’s stated income was not an accurate reflection of his actual earning capacity and his ability to pay child support.
In assessing the evidence and finding of fact regarding the Appellant’s income, property and financial resources, the Tribunal stated as follows in appeal number SC236332:
“58. It is not in dispute that [the Appellant] taxable income for the 2006/2007 year was $99898. It is also not in dispute that [the Appellant] ceased being a director of [F] Pty Ltd on 1 January 2008 and that from that date his working pattern changed markedly as a result of lifestyle decisions, his less than ideal emotional state following the breakdown of his marriage to [the First Respondent], and the commencement of his studies.
59. Having said that, the Tribunal does not accept [the Appellant] withdrew his involvement in company operations and management to the extent he would have the Tribunal believe or that his income from such involvement is accurately reflected by his disclosure to the tribunal. The Tribunal finds that he has had an active and ongoing role in the business of [F] Pty Ltd and [L] Pty Ltd after he ceases being a company director in January 2008. An indicator of this is the fact that, as per folio 144 of SC236695, as of 2 December 2009, he was still listed as the contact person on the Website of [L] Pty Ltd. The tribunal also notes that in his initial evidence, [the Appellant] admitted to maintaining an involvement in hiring staff and overseeing projects.
60. The Tribunal also notes that bank statements tendered by [the Appellant], together with Australian Transaction reports and Analysis Centre (AUSTRAC) reports contained within the papers , show that large amounts of cash deposits and withdrawals and international funds transfers have been transacted through the accounts of [the Appellant] and [F] throughout the period September 2006 to October 2008. These documents also show that [the Appellant] has, on his evidence , been able to borrow substantial amounts of money from family members both within Australia and Lebanon.
61. The Tribunal finds that AUSTRAC reports show the total value of cash withdrawals of more than $10,000 during the period 1 January 2008 to 30 June 2008 was $425,000. This would suggest than annualised cash expenses of the company are well in excess of $900,000, particularly when one considered that withdrawals of below the mandatory $10,000 threshold are not included in the total. On the other hand, folio 285 of the papers, being information provided by [the Appellant] to a Senior Case Officer in April 2008 regarding the income and expenses of the company suggest that company expenses totalled less than $300,000 for the nine month period 1 July 2007 to 31 March 2008. The Tribunal finds it incomprehensible that such a divergence would exist between alleged levels of company expenditure and this divergence is a reflection of the integrity of [the Appellant’s] evidence. ”
In the circumstances, it was open to the Tribunal to have regard to the ability of the Appellant to repay $137,300 on 20 November 2007 to his uncle as repayment of a loan and to find that such ability affected his earning capacity.
Again, the Tribunal’s findings in respect of the Appellant’s transaction of $137,300 were open to it on the material and evidence before it and for the reasons it gave. It was also open to the Tribunal to find, as it did, the Appellant’s ability to repay that debt was relevant to assessing his earning capacity.
Accordingly Ground 3 does not establish an error of law.
Ground 4
For the reasons referred to in Ground 3 above, Ground 4 also does not establish an error of law.
Grounds 5,6,7,8 and 9
These grounds were withdrawn by the Appellant.
Ground 10
In Ground 10 the Appellant asserted that the Tribunal erred in determining that his purpose in resigning from his work with
[F] Pty Ltd was to affect the level of child support assessed.
As referred to in the reasons in relation to Ground 3 above, the Tribunal had regard to the coincidence of the timing of the Appellant’s resignation. The Tribunal rejected the Appellant’s explanation that he had health reasons and his further reasons that he wished to study full time as rebutting the presumption that arose pursuant to s.117(7B) of the Assessment Act that the Appellant’s earning capacity was greater than as reflected in his income tax return. The Tribunal found that his decision to resign as a director of the company and to reduce his hours of work and change his working pattern were not justified on the basis of his caring responsibilities or state of health.
As stated above, the Tribunal found that the Appellant had an ongoing role in [F] Pty Ltd even after he ceased being a director and shareholder. The Tribunal found that his earning capacity was not limited by his state of health or caring responsibilities. The Tribunal further found that his adjusted taxable income before he ceased being a director was $99,898 in 2006/2007. The Tribunal was satisfied that the Appellant had a similar earning capacity to his 2006/2007 taxable income.
Mr Ajaje referred the Court to Waitesv Lawson [2011] FMCAfam 42 where the Court considered a case different on the facts to the case before this Court. In Waites, the appellant continued to work full time and the issue before the Court was whether or not s.117(7B) of the Assessment Act was triggered in that event. In the circumstances before this Court the relevant parts of s.117(7B)(a) were clearly satisfied on the Appellant’s own evidence. The Tribunal did not make a positive finding that the Appellant engaged in any sham. The Tribunal was simply not satisfied that the Appellant had rebutted the presumption that arose pursuant to s.117(7B) of the Assessment Act, having found that the Appellant had the earning capacity.
Those findings are findings of fact and were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 10 does not establish an error of law.
Ground 11
Ground 11 asserts the Tribunal failed to take into account the Appellant’s decline in health and unsuitability for office as director and office holder of [F] Pty Ltd and [L] Pty Ltd under the Corporations Act 2001 (Cth).
The complaints in Ground 11 have largely been dealt with in the reasons in respect of the grounds above.
The Tribunal noted the Appellant’s claim that he had to resign from his position as the director of the company for health reasons and had regard to a letter from his psychologist dated 18 March 2010 stating that he had seen the Appellant since 31 July 2008.
However, the Tribunal was not persuaded by the statement in the psychologist’s letter that the Appellant was unable to work full time in his own business. The Tribunal noted that the letter from the psychologist did not contain detailed information about the Appellant’s work capacity. It did not state that the Appellant had any diagnosed psychological condition that prevented him from working full time and it did state that the Appellant’s symptoms had improved “significantly”.
The Tribunal also noted that Centrelink had not exempted the Appellant from looking for work for medical reasons.
Accordingly, based on the evidence before it, the Tribunal found that on the limited medical evidence before it, it did not accept that the Appellant was unable to work full time for health reasons.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 11 does not establish an error of law.
Ground 12
Ground 12 asserts that the Tribunal failed to take into account the period of time in which the Appellant was a full time student, the transition thereafter of the Appellant to becoming a part time student and the Appellant thereafter becoming a part time student.
The Tribunal found that the Appellant’s studies did not affect his earning capacity. The Tribunal found that his capacity to undertake full time study and part time work in 2009 demonstrated that he was capable of full time work. The Tribunal’s decision records make clear that the Tribunal explored in some detail the Appellant’s studies. The Tribunal also noted that the Appellant told the Tribunal that he wished to undertake further study to improve his future earning capacity for himself and to provide for his child.
As stated above, the Tribunal also accepted that, while the Appellant may wish to improve his future employment opportunity by taking further studies, that could not take precedence over his obligation to support his child.
Those are findings of fact that were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly Ground 12 does establish an error of law.
Ground 13
Ground 13 was withdrawn by the Appellant.
Grounds 14 and 15
Grounds 14 and 15 allege that the Tribunal erred in the method by which it extrapolated the Appellant’s income and that it had failed to take account of relevant considerations.
I asked the Appellant’s solicitor what was the method by which the Appellant’s income had been extrapolated and with which he disagreed. Mr Ajaje repeated his submission that the Tribunal had incorrectly treated the Appellant’s indebtedness as an asset. This submission by Mr Ajaje has been dealt with above. It entirely oversimplifies the detailed consideration given by the Tribunal to the Appellant’s earning capacity and financial resources and the inconsistencies that the Tribunal found to exist in the Appellant’s claimed income and assets.
As stated above, the Tribunal’s findings were open to it in respect of the Appellant’s income, assets, financial resources and earning capacity on the evidence and material before it and for the reasons it gave.
Further, I note that none of the matters referred to in Ground 15 were matters raised by the Appellant with the Tribunal.
No error of law has been established in relation to the method by which the Tribunal “extrapolated” the Appellant’s income.
In the circumstances, Grounds 14 and 15 do not establish an error of law.
Ground 16
Ground 16 was withdrawn by the Appellant.
Ground 17
Ground 17 asserts that the Tribunal erred in finding that it was just and equitable to depart from the administrative assessment.
This ground is largely addressed in Ground 1 above. As is apparent from the reasons above, the Tribunal considered carefully whether it was just and equitable to depart from the administrative assessment. That consideration was done in accordance with the s.117 of the Assessment Act. As stated above, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly Ground 17 does not establish an error of law.
Ground 18
Ground 18 asserts that the Tribunal erred in finding that it was “otherwise proper” to depart from the administrative assessment in accordance with the Tribunal’s decisions.
No further oral submission was made in support of Ground 18 beyond those made in support of the grounds above. In the circumstances, and for the reasons stated above, the Tribunal’s findings were open to it on the evidence and material before it, including its finding that it was “otherwise proper” to depart from the administrative assessment.
Accordingly Ground 18 does not establish an error of law.
Conclusion
Other than Ground 2, the grounds of the Notice of Appeal are no more than disagreements with the findings and conclusions of the Tribunal. Such complaints invite merits review, which this Court can not undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
A fair reading of the Tribunal’s decision records make clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Appellant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Appellant matters of concern it had about his evidence and noted the Appellant’s responses.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision records make clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decisions and no error of law has been established by the Appellant in respect of those decisions.
The appeal before this Court commenced by way of Notice of Appeal filed on 31 May 2010 should be dismissed with costs.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 19 May 2011
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