BARNETT & CHILD SUPPORT REGISTRAR (SSAT APPEAL)

[2011] FMCAfam 1224

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNETT & CHILD SUPPORT REGISTRAR (SSAT APPEAL) [2011] FMCAfam 1224

CHILD SUPPORT – Appeal from SSAT – no question of law raised – appeal dismissed.

Administrative Appeals Tribunal Act 1975, s.44(1)
Child Support (Registration and Collection) Act 1988, s.110B

Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232
Comcare v Etheridge [2006] FCAFC 27

Applicant: MR BARNETT

Respondent: CHILD SUPPORT REGISTRAR

File Number: BRC 2482 of 2007

Judgment of: Jarrett FM

Hearing date: 14 March 2011

Date of Last Submission: 14 March 2011

Delivered at: Brisbane

Delivered on: 17 November 2011

REPRESENTATION

The Applicant appeared in person

No appearance for the Respondent

ORDERS

1. The Notice of Appeal filed on 29 March, 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Barnett & Child Support Registrar (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 2482 of 2007

MR BARNETT

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

1. By his notice of appeal, Mr Barnett, challenges a decision of the Social Securities Appeals Tribunal given on 6 August 2009.  Neither the respondent nor the SSAT appeared at the hearing of this appeal.

2. Mr Barnett seeks the following orders:

   1. That any debt be remitted and the caveat removed from my property

   2. That the period 5/10/2005 to 15/12/2005 and 10/06/2008 to 16/1/2009 be reassessed on my actual income

   3. Any other orders that the honourable Court sees fit

3. The grounds of appeal specified by Mr Barnett in his notice of appeal are:

   The SSAT findings are unreasonable and unsupported by evidence

The Statutory Framework

1. A party may appeal a decision of the SSAT pursuant to s.110B of the Child Support (Registration and Collection) Act 1989.  That section is in the following terms:

   “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.”

The Nature of this Appeal

1. The nature of an appeal under s.110B is not unlike an appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975.  The terms of both sections are similar and each provides a right of appeal “on a question of law”. 

2. The nature of an appeal under s.44(1) of the AAT Act was recently considered by the Full Court of the Federal Court of Australia in Comcare v Etheridge [2006] FCAFC 27. I consider the remarks in that case are apposite to appeals on a question of law pursuant to s.110B of the Registration and Collection Act.

3. In Comcare v Etheridge, Branson J (with whom Spender and Nicholson JJ agreed) summarised the nature of the right conferred by s.44(1) in the following terms:

   13 The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232; 76 ALD 321 (‘Birdseye’) by Stone J and me particularly at [10]‑[18]. We expressed our approval of the observation made by Gummow J in TNT Skypack International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178 that an appeal ‘on a question of law’ is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies ‘on a question of law’ the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53 r 3(2)(b).

   14 The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [35]‑[47]). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act.

   15   In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 527 that:

   ‘If the question, properly analysed, is not a question of law no amount of formulary like “erred in law” or “was open as a matter of law” can make it into a question of law.’

   16 A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye at [18]:

   ‘In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law.  It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.’

   17   Although recent amendments to s 44 of the AAT Act have given the Federal Court limited powers to make findings of fact (see s 44(7)‑(10)), this is a power available to be exercised after the Court has given consideration to the questions of law which constitute the subject matter of the appeal.  If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in the Court by s 44(7) may be exercised, where it is convenient to do so having regard to the factors identified in the subsection, to avoid the need for the matter to be remitted to the Tribunal for further consideration.

4. In Birdseye v Australian Securities and Investment Commission [2003] FCAFC 232, Branson and Stone JJ said:

   13 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:

   ‘I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal "grounds" which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only "the grounds relied upon in support of the order sought".  In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.’

   14 His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.

   15 Further, his Honour at 527 expressed the view that:

   `... it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law."  If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.'

   16 We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.

   17 A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC); Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the Tribunal having regard to the requirements imposed by O 53 r 3(2).  Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal.

   18 In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated.

   see also Hussain v Minister for Foreign Affairs (2008) 169 FCR 241.

5. There was no attempt by Mr Barnett to identify a question of law that arose as a result of the SSAT decision.  Mr Barnett argued that the complexity of his case meant that the decision of the SSAT needed to be set aside.  He argued that the SSAT made its decision based upon an incorrect premise, namely that Mr Barnett did not have primary care for his children.

6. A question of law is essential to a successful appeal pursuant to s.110B of the Child Support (Registration and Collection) Act 1988.

The applications before the SSAT

1. Before the SSAT was an appeal by Mr Barnett made on 5 May, 2009.  That decision was made in respect of a decision of an objections officer to disallow an objection made by Mr Barnett to a decision of a senior case officer from the Child Support Agency.  The senior case officer had on 3 December, 2008 considered and made a determination in respect of a departure application made by Mr Barnett pursuant to Part 6A of the Child Support (Assessment) Act 1999.  The senior case officer had allowed Mr Barnett’s application and made the following determination:

   a)That for the period 11 October 2005 to 15 December 2005 the annual rate of child support payable by Mr Barnett reduced to the minimum rate ($260.00 per year);

   b)That for the period 1 February 2008 to 30 June 2008 the annual rate of child support payable by Mr Barnett was set at $922.00;

   c)That for the period 1 July 2008 to 28 October 2008 the annual rate of child support payable by Mr Barnett was reduced to nil;

   d)The for the period 1 July 2009 to 30 September 2009 the annual rate of child support payable by Ms Barnett should be set at nil.

2. As the tribunal recorded in its reasons:

   14. The practical effect of this decision was to allow Mr Barnett credits against his child support liability which reduced his liability to $4308.97 as at 4 December 2008.

3. By its decision, the SSAT decided to set aside the decision under review and substituted the following:

   a)For the period 6 October 2005 to 15 December 2005 Mr Barnett be assessed to pay child support based on a child support income on the cap amount of $104, 493.00 per annum;

   b)For the period 10 June 2007 to 15 January 2009 Mr Barnett be assessed to pay child support based on a child support income of $50,000.00 per annum;

   c)

   For the period 15 January 2009 to 26 November 2009

   
   

   Mr Barnett’s child support income be set at nil;

   d)For the period 10 June 2007 to 3 March 2009 Ms Barnett’s child support income be set at $13,871.00 per annum;

   e)For the period 3 March 2009 to 26 November 2009 Ms Barnett’s child support income to be set at nil.

The Tribunal’s reasons

1. The tribunal’s reasons reveal that it accepted an argument from

   
   

   Mr Barnett that the objections officer’s decision was incorrect because the start date for the relevant administrative assessment of 11 October 2005 was erroneous.  Mr Barnett argued that because he had finished work in [B] and moved to the Sunshine Coast on or about 5 October 2005 the relevant administrative assessment should commence from that date.  The SSAT’s decision corrects that error.

2. As the tribunal set out:

   “48. However, the main issue for the tribunal was not the precise start date but rather whether or not Mr Barnett’s child support income should have been worked out on his capacity to work rather than actual earnings after he resigned from[omitted] at [B]”

3. After recording that Mr Barnett resigned his employment at [B] and ceased work after 5 October, 2005 and that he did not work at all during the period 6 October, 2005 to 15 December, 2005 the tribunal turned to consider the legislation.  The tribunal correctly set out in its reasons the legal position relevant to a determination that a parent’s earning capacity is greater than is otherwise reflected in his or her actual income.  The tribunal considered Mr Barnett’s explanation for his failure to work during the relevant period.  Essentially he claimed that he needed to move from [B] to the Sunshine Coast to be nearer to his children and because Ms Barnett had a psychiatric condition.  He was obliged to monitor the welfare of the children. 

4. The tribunal considered that claim and, rejected it. The tribunal considered that there was no medical evidence to support Mr Barnett’s assertion. The tribunal was correct in that respect. Before me,

   
   

   Mr Barnett relied upon an affidavit filed by him on 8 July, 2008 in proceedings numbered BRC 2422 of 2008.  There is some evidence in that affidavit that is consistent with Mr Barnett’s claims about his wife’s psychiatric condition. However that affidavit, nor the documents attached to it, was before the tribunal.

5. Moreover, the tribunal did not accept Mr Barnett’s claims about the reason he ceased his work in [B] and moved to [C]. The tribunal pointed out that the evidence seemed to be that whilst Mr Barnett was living in [B] he was visiting his children every weekend. After he moved to [C], however, the tribunal found that he did not continue that level of contact with the children which then reverted to each alternate weekend and one night during the other week.  Mr Barnett did maintain other contact with the children through their school.  Before me,

   
   

   Mr Barnett sought to demonstrate by reference to his affidavit of

   
   

   8 July, 2008 and the documents annexed to it that the tribunal’s finding of fact was wrong.  But the affidavit and the annexures to it were not before the tribunal.  On what was before the tribunal, the finding it made was open to it.

6. The tribunal made a factual determination that Mr Barnett’s caring responsibilities did not justify his resignation in October, 2005.  The tribunal determined that Mr Barnett had not presented any evidence to suggest that he was looking for work over the relevant period and therefore had not rebutted the presumption against him that he had ceased his employment to reduce his child support assessment.  The tribunal determined that a ground of departure existed for that period based on Mr Barnett’s actual earning capacity.

7. In respect of the second period under consideration, the tribunal determined to commence its assessment from 10 June, 2007.

   
   

   Mr Barnett’s application had been made on 11 September, 2008. The tribunal could only determine the change of assessment application for a period no earlier than eighteen months prior to the filing of the application. That date was 10 June, 2007. The tribunal determined that the administrative assessments for the period 10 June, 2007 to

   
   

   15 January, 2009 required reconsideration. Part of that period relates to Mr Barnett’s appeal before me (10 June, 2008 to 16 January, 2009). 

8. The tribunal took the view that for this period Mr Barnett had an earning capacity that was not reflected in his actual income. Mr Barnett gave the tribunal evidence that he had been offered a job as a full time [omitted] on the Sunshine Coast, but he had refused to take that job because according to him, his child caring responsibilities prevented him from doing so.  The tribunal made a finding that Mr Barnett could have taken up the employment and discharged his child caring responsibilities.  The evidence was that the employment offered an income of $50,000.00 per annum.  It is this sum that was fixed upon by the tribunal when determining Mr Barnett’s earning capacity for the period under consideration.

9. The tribunal ended the period the subject of its reconsideration on

   
   

   15 January, 2009.  On that day Mr Barnett suffered an injury which, the tribunal accepted, prevented him from pursuing remunerative employment.  He became disabled for work on the basis of a medical condition.

Consideration

1. No question of law is raised by this appeal.  At best, Mr Barnett seeks a review of the merits of the decision.  He argued that the SSAT’s decision was not just and equitable and was not otherwise proper because the certain arrears existed by reason of the tribunal’s decision and it would probably mean that he would have to access some or all of the equity in his real property to satisfy the arrears.  The tribunal, however, turned its mind to those matters (at for example paras.73 and 79 of the reasons for decision).

2. As no question of law is raised by the appeal, it must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date:  17 November 2011