Burns & Grint
[2014] FamCAFC 48
•28 March 2014
FAMILY COURT OF AUSTRALIA
| BURNS & GRINT | [2014] FamCAFC 48 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILD SUPPORT - Where the appellant seeks leave to appeal and if leave granted to appeal orders of a Federal Magistrate dismissing a review by the appellant to this appeal against a decision of the Social Security Appeals Tribunal (SSAT) – Where the grounds of appeal are relied upon in as the basis of seeking leave to appeal – Where there is no merit in any ground of appeal – Where there is no error of principle or substantial injustice or a matter of general importance – Application for leave to appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the appellant seeks leave to adduce further evidence – Where the application is not opposed by the respondent – Application to adduce further evidence granted by consent. |
| Child Support (Assessment) Act 1989 (Cth) – s 117 Child Support (Registration and Collection) Act 1988 (Cth) – ss 87 to 103AZ, s 107A(1), (2) and (5), s 110B, s 110G and Part VII Family Law Act 1975 (Cth) – s 94AA Federal Circuit Court of Australia Act 1999 (Cth) – s 10(2) |
Family Law Rules 2004 (Cth)
| Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 |
| APPLICANT: | Mr Burns |
| RESPONDENT: | Ms Grint |
| FILE NUMBER: | BRC | 8404 | of | 2010 |
| APPEAL NUMBER: | NA | 43 | of | 2012 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland & Hogan JJ |
| HEARING DATE: | 27 June 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 April 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 347 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Selfridge |
| SOLICITOR FOR THE APPLICANT: | Shine Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Alexander with Ms Walker-Munro |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
By consent, the application in an appeal filed on 18 April 2013 seeking leave to adduce further evidence be granted.
The application for leave to appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Grint has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 43 of 2012
File Number: BRC 8404 of 2010
| Mr Burns |
Applicant
And
| Ms Grint |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 3 December 2012 Mr Burns (“the father”) seeks leave to appeal, and if leave is granted, to appeal an order made by Federal Magistrate Burnett (as his Honour then was) on 20 April 2012, which dismissed the father’s application for review of a decision made by the Social Security Appeals Tribunal (“the SSAT”) in relation to child support. The respondent in the appeal is Ms Grint (“the mother”). She opposes the application and the appeal.
Pursuant to directions made on 23 July 2012 the Child Support Registrar (“CSR”) was served with the Notice of Appeal and subsequently advised that the Child Support Agency did not intend to intervene or otherwise participate in the appeal.
In the event leave to appeal is granted the father seeks that the decision of
the Federal Magistrate of 20 April 2012 be “overturned” and the matter be remitted to the Tribunal for rehearing by a differently constituted Tribunal or, in the alternative, remitted to the now Federal Circuit Court for rehearing by a Judge other than Judge Burnett.
Relevant Statutory Provisions
Part VIIA (ss 87 to 103ZA) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) provides for applications to the SSAT for the review of certain decisions of the Child Support Registrar made under Part VII.
Section 103S(1) of the Registration and Collection Act provides that in relation to such an application for review, 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 of the SSAT.
…
Section 110B of the Registration and Collection Act provides that:
A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.
(Emphasis added)
The courts having jurisdiction under the Registration and Collection Act include the Federal Circuit Court, and thus an appeal on a question of law from the SSAT can be brought in the Federal Circuit Court, and that is what happened here.
Section 110F of the Registration and Collection Act sets out the powers of the court hearing appeals from decisions of the SSAT in the following terms:
(1)The court must hear and determine an appeal under this Subdivision and may make such order as it thinks appropriate by reason of its decision.
(2)Without limiting subsection (1), the orders that may be made by the court on an appeal include:
(a)an order affirming or setting aside the decision of the SSAT; or
(b)an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the SSAT in accordance with the directions of the court.
…
An appeal then lies under s 107A(1) of the Registration and Collection Act, with the leave of the Family Court, to the Family Court from a decision of the Federal Circuit Court in relation to the determination of an appeal from the SSAT brought under s 110B of the Registration and Collection Act – the determination of such an appeal by the Federal Circuit Court being within the original jurisdiction of that court (s 10(2) of the Federal Circuit Court of Australia Act 1999 (Cth)).
Section 107A(2) provides that the jurisdiction of the Family Court in relation to such appeals is to be exercised by the Full Court, unless the Chief Justice considers that it is appropriate for the jurisdiction to be exercised by a single judge. As a matter of practice, the jurisdiction in relation to such appeals is exercised by the Full Court.
Section 107A(5) of the Registration and Collection Act sets out the powers of the court hearing an appeal under s 107A as follows:
(5)On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree of decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions (if any) as it considers appropriate.
Background
The parties have two children, child A born in 1992 and child B born in 1996.
An administrative assessment of child support for the period from
31 October 2009 to 26 November 2009 resulted in the father having a child support liability of $3,988 per annum. This was based on a change of assessment decision which set the father’s adjusted taxable income at $32,000 and applied the mother’s 2007/2008 taxable income of $4,650.
An administrative assessment of child support for the period from
27 November 2009 to 28 February 2010 resulted in the father having a child support liability of $692 per annum. This was based on the father’s adjusted taxable income for 2007/2008 of $20,639 and the mother’s at $4,650 for the same period.
On 28 October 2009 the mother filed an application for a departure order under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
On 20 December 2009 a decision was made that the father’s adjusted taxable income for the period from 27 November 2009 to 31 October 2011 be set at $141,064.
The father objected to that decision and on 19 March 2010 an objections officer set the father’s adjusted taxable income at $204,960 for the period from
28 October 2009 to 31 May 2010 and $240,700 for the period from 1 June 2010 to 31 March 2012.
The father appealed that decision to the Tribunal and on 9 August 2010 the Tribunal set aside the decision of 19 March 2010 and substituted a new decision, namely that for the period from 28 April 2008 to 31 October 2012 the father’s adjusted taxable income be set at $167,000.
On 9 September 2010 the father filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision of 9 August 2010. The matter came before the Federal Magistrate on 10 June 2011 and his Honour made orders and delivered his reasons for judgment on 20 April 2012 dismissing the father’s application filed 9 September 2010.
Reasons for judgment delivered 20 April 2012
The Federal Magistrate commenced his reasons for judgment by outlining the procedural history of the matter and the law in relation to judicial review of decisions made by administrative tribunals.
The Federal Magistrate then set out his findings in relation to each of the grounds of appeal pursued at the hearing, which are summarised below.
Ground 2 – No Tribunal error in law based upon unreasonableness
It was the father’s complaint that “no Tribunal properly advised as to the law, in light of the evidence, could reasonably have reached the same conclusion”, particularly the conclusion that the evidence supports a finding that the applicant earns an income of approximately $167,000 per annum before tax.
It was the father’s first submission that the SSAT ignored verified losses made by the trust of which the father’s company was the sole trustee. However, the Federal Magistrate found the SSAT expressly dealt with this, noting that it did not adjust the income to take into account the losses but rather regarded them as a “future income tax benefit”, which indicated the financial capacity available to the father.
The father’s second submission was that the SSAT “perversely ignored the evidence which points to the 2008 financial year being an anomaly”. However, again the Federal Magistrate found the real point of the father’s submission was that the SSAT “ignored” his evidence and that he was unhappy with the manner in which the SSAT sought to “smooth the profits of the 2008 and 2009 financial years”.
The Federal Magistrate found it was open to the SSAT to make the finding of fact that it did and that the father’s submissions on this point sought “impermissible merits review”.
Ground 3 – The Tribunal failed to consider relevant evidence
It was the father’s complaint that the SSAT failed to consider the evidence or make findings of fact in relation to the evidence. The father referred in particular to his individual taxation returns and the returns of his company for the period from 30 June 2007 to 30 June 2009.
The Federal Magistrate found at [25] it was:
…tolerably plain that the Tribunal has considered all the financial evidence relevant to [the father] and, in particular, was acutely aware of the significance of the structural arrangements by which he ordered his “financial resources”.
His Honour also found, insofar as any relevant matter may not have been considered, it would have been “so insignificant that any such oversight would not have materially affected the decision”.
Ground 4 – The Tribunal failed to apply the correct law
His Honour found this “broad range ground” was “so lacking in particulars as to be meaningless”.
Ground 5 – The Tribunal erred in the method it used in calculating the father’s child support income
Similarly the Federal Magistrate found this ground was “so lacking in particulars as to be meaningless”, and that any complaint relevant to this ground was also addressed in submissions on the other grounds of appeal.
Ground 6 – The Tribunal failed to give proper consideration to the matters set out in s 117(4) of the Assessment Act
It was the father’s complaint that the SSAT failed to give proper consideration to the father’s income and financial resources, the father’s commitments to support himself, and the hardship that the orders would cause the father. The Federal Magistrate identified the paragraphs in which the SSAT discussed the father’s income, property and financial resources, as well as the father’s commitments to support himself. Although the term “hardship” was not used, his Honour found it was “plain that the Tribunal weighed the competing factors”.
Ground 7 – The Tribunal failed to address itself to evidence or misinterpreted evidence
The father complained that the SSAT failed to address itself to evidence, or misinterpreted evidence before it, which constituted an error of law by failing to take account of relevant considerations, failing to place any or proper weight upon proper considerations, taking account of irrelevant considerations, coming to a determination which no reasonable decision maker in the circumstances would have reached upon the same facts, and failing to state or give any or any adequate reasons for its decisions to disallow particular expenses where corresponding liabilities were allowed.
In particular, the father made allegations in relation to eight instances which he contended demonstrated one or more of the above mentioned errors. The eight instances and the Federal Magistrate’s findings in relation to each are summarised below:
1. The father alleged the SSAT erred in its approach to evidence that his business suffered income and capital losses as a result of the separation agreement he entered into with his former spouse. The Federal Magistrate found no evidence to demonstrate the SSAT’s approach in its consideration of this material was unreasonable, and indicated that this complaint “merely reflects unhappiness on the part of the [father] with the ultimate decision made by the Tribunal and seeks impermissible merits review.”
2.The father complained the SSAT misinterpreted the sales figures for the six months ending 30 June 2007 as being $137,449 (when it was $151,467), the gross profit for the same period being $120,045 (when it was $129,063), and the net profits of $69,532 (when it was $25,580). The father submitted it ought to have been clear to the SSAT that on the sale of stock of $22,404 the business could not have made a profit of $129,063 and thus, the SSAT should not have relied upon the subsequent years’ balance sheets as a true reflection of the father’s earning capacity. The Federal Magistrate found the father confused “mark up” with “profit” and, as there was no indication whether the matter was raised before the SSAT in the terms articulated on appeal, his Honour was of the view the SSAT could not have acted unreasonably or ignored a relevant consideration.
3.The father complained that the SSAT failed to accord any or any proper weight to the father’s evidence that the net profit figure for the financial year ending 30 June 2008 was not a true reflection of the net profit of the business. The Federal Magistrate found the father’s complaint “entirely meaningless”.
4. In essence, the father complained about the weight afforded to his evidence on profits and the reasonableness of the SSAT in “smoothing” the profit over the 2008 and 2009 financial years, when the father asserted the financial year ending 30 June 2007 should have also been taken into account. The Federal Magistrate found these were all matters of fact which were “well within the jurisdiction” of the SSAT and that nothing suggested the decision was “so unreasonable as to render it a failure … to exercise … jurisdiction” or “afford proper weight in terms of the relevant considerations”.
5.The father contended it should have been clear to the SSAT that during the financial year ending 30 June 2008, on the sale of stock of $378,701, the business could not have made a profit of $609,716 and thus, the SSAT should not have relied on the subsequent years’ balance sheets as a true reflection of the father’s earning capacity. Again, the Federal Magistrate found the father had misconstrued proper accounting principles and was seeking an impermissible merits review of a decision which was entirely open to the SSAT.
6.This was another complaint by the father as to distribution of the business profits, which the Federal Magistrate found “entirely meaningless” and an impermissible merits review on a finding of fact which was entirely open to the SSAT.
7.It was the father’s contention that the SSAT erred in not adding back the depreciation amounts claimed by the father. However, the Federal Magistrate found that, in measuring the father’s income by reference to net profit rather than “cash profit”, the SSAT had carefully and properly considered the appropriate way to deal with the issue of depreciation (on the basis that net profits ordinarily allow for depreciation).
8.Lastly, the father complained that his child support liability up to October 2009 was determined by the SSAT on the basis of his income increasing from $32,700. Again, the Federal Magistrate found this complaint was “largely meaningless” and that it sought to encompass matters previously raised by the father.
Ground 8 – The Tribunal failed to take into account relevant considerations concerning the retail business purchased by the father for the mother
In relation to this complaint, the mother acknowledged that the father’s purchase of the retail business for her was in substitution for child support payments. The father submitted the arrangement was made because it was better tax-wise for him, that he had paid child support for the child C for approximately five years when it was or should have been known that C was not his child, and that the mother had failed to disclose, or had understated the income she received from her retail business. Although the SSAT made no mention of the retail business, the Federal Magistrate noted the SSAT only needed to consider the mother’s actual income at the time of the application and that “[n]othing in the facts placed before the Court give ground to any suggestion that the Tribunal’s approach on the matter was such that it would have given rise to jurisdictional error”(at [38]).
Ground 9 – The extension by Registrar of the Tribunal’s determination to November 2009
By way of background, an earlier constituted SSAT had assessed the father’s income at $32,700 as at 12 July 2007 and set that income until November 2007. The mother did not appeal that assessment but later made a further change of assessment application which resulted in a Registrar extending that assessment until November 2009. When the father’s adjusted taxable income for the period from November 2009 to February 2010 fell on an annualised basis from $32,700 to $20,639, the mother made a departure application. It was apparent that there was significant disparity in the income and taxation records available before the delegate and the SSAT. When the father’s true financial position became apparent after the appeal from the objection decision under review, the SSAT considered 28 April 2008 was an appropriate commencement date for the departure.
Upon considering the High Court’s remarks in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 and Annetts v McCann (1990) 170 CLR 596, the Federal Magistrate noted that “the only rights arising from an administrative decision are procedural, not substantive”. Thus, his Honour found the father’s complaint that the decision gave rise to substantive rights was without legal foundation and that the Tribunal did afford the father procedural fairness.
Ground 10 – The father did not agree as alleged that the “business is the alter ego for child support purposes”
The Federal Magistrate found this was a matter of fact which was open to be drawn from the father’s evidence, especially given the broad mandate of
s 117(4)(d) of the Assessment Act in permitting the consideration of a party’s “financial resources”. In particular, his Honour considered the father’s statement at the hearing that “the company is me” and the evidence that the father was both the controller of the corporate trustee and a principal beneficiary under the trust.
Ground 11 – The finding of $1,700 per month gambling is unsupported by evidence
In the absence of any submissions addressing this matter, the Federal Magistrate dismissed this ground.
Bias
Lastly, the Federal Magistrate turned to consider a further ground of appeal which was not in the Amended Notice of Appeal but was raised in submissions, namely that the SSAT was “biased”.
In particular, the father relied on a diary note made of a telephone conversation between an officer of the SSAT and the mother on 19 May 2010, which stated as follows (at [51]):
[The mother] advised that [the father] did not answer his phone for the SSAT hearing that was scheduled. [The mother] wanted me to know that she has been told by SSAT that it is likely that [the father’s] arrears will increase by possibly $50,000.00 and that his liability will remain the same. [The mother] stated that COA and the SSAT did not have information about the family trust that [the father] was the sole director of and received an income of AUD$250,000.00 in 07/08. [The mother] stated that if the $50,000.00 was added to his arrears [the father] would definitely move overseas as [the father] had various companies overseas.
The Federal Magistrate observed the note was prepared by a call centre officer and considered first, the accuracy of the mother’s restatement of matters and secondly, what was meant by the term “SSAT”, namely whether the mother was reporting something advised to her by a SSAT member acting in his/her capacity as a member of the SSAT or something advised to her by a member of the SSAT’s staff in an administrative capacity.
The father also alleged that the SSAT demonstrated bias towards him “in the manner and tone of their questioning … at the hearing on 12 July 2010”, which the father submitted revealed the Tribunal had formed a particular view of him and “cast the members in a position of adversary of [him]”. As audio of the proceedings was not provided, the Federal Magistrate found the transcript itself did not reveal the SSAT “doing any more than what would be expected by a Tribunal which is required to conduct proceedings in a manner consistent with its inquisitorial responsibilities cast in an adversarial context”.
Upon considering the High Court’s remarks in Johnson v Johnson (2000) 201 CLR 488, the Federal Magistrate determined at [56] there was:
…nothing in the manner in which this application was disposed of before the Tribunal to suggest the manner in which the Tribunal conducted itself demonstrated bias to the requisite standard, that being that of a reasonable and fair-minded person witnessing the proceedings of an administrative Tribunal.
In conclusion, having found no error of law in any of the grounds of appeal, the Federal Magistrate dismissed the father’s application.
Leave to Appeal
Section 107A of the Registration and Collection Act does not provide any guidance as to what must be demonstrated to obtain leave. However, it appears to be recognised that the principles to be applied are those that are applied generally when leave is required. For example, when leave to appeal is sought under s 94AA of the Family Law Act 1975 (Cth) (“the Act”) it has been held that the applicant for leave must show an error of principle, and/or the fact that the decision sought to be appealed from caused him or her a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255), or that the matters raised are of considerable general importance (Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10). It has been acknowledged though that in applying these principles in child support matters the court should take a less restrictive approach than applies to appeals under s 94AA. For example, in Gilmour and Gilmour (1995) FLC 92-591, the Full Court (Ellis, Finn and Maxwell JJ), after reviewing the authorities addressing leave to appeal in child support matters, said at 81,843:
However, in granting leave for the reasons which we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing we would, however, draw attention to the unreported decision of Conn v. Martusevicius (delivered in Melbourne on
9 June 1992) in which, in dismissing an application for leave to appeal pursuant to Section 102 of the Assessment Act, both Barblett D.C.J. and Nygh J. in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principles stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act.In Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641, the Full Court (Ellis, Kay and Mullane JJ), with reference to the authorities including Gilmour, reiterated that the court should not be too restrictive in granting leave to appeal if it is perceived that there has been any error of principle which has affected the applicant’s substantive rights.
Further, in Forbes & Bream [2010] FamCAFC 6 the Full Court (Bryant CJ, Boland and Stephenson JJ) recognised, at [39], that while generally there must be demonstrated that there has been “an error of principle in the making of the order sought to be appealed or that the order will result in substantial injustice” before permission to appeal is granted, in child support matters it is “inevitable” that the orders will affect the financial position of the parties. This may therefore be a relevant matter to take into account in determining whether to grant leave.
In his Amended Notice of Appeal filed on 3 December 2012 the father states the following facts in support of his application for leave to appeal:
1.The Appellant Father relies upon the matters in the Grounds of Appeal below.
2.It is submitted that it was an error of principle for the learned Federal Magistrate to:-
(a)Exclude relevant evidence;
(b)Fail to consider relevant evidence;
(c)To accept that the entity [Burns] Consultancy Pty Ltd as trustee of the [Burns] Family Trust (referred to collectively as “the Business”) was the Father’s “alter ego for child support purposes” without appropriate evidence;
(d)To base the Father’s income on the sales less expenses of the Business without appropriate evidence;
(e)To allow the ‘smoothing of income’ over two financial years without appropriate evidence;
3.It is submitted that if leave is not granted there will arise a substantial injustice, particularly having regard to:-
(a)The issue of apprehended bias;
(b)The learned Federal Magistrate failed to consider all of the relevant evidence;
(c)The matter needs to be remitted to the SSAT for full rehearing to make findings about the income of the Business;
(d)The significant hardship arising from the decision resulting in such a large payment of backdated child support; and ongoing liability.
4.It is submitted the Appellant’s merits on appeal are good.
(Emphasis in original)
As can be seen, the applicant relies on the proposed grounds of appeal to establish that there is a basis for granting leave. Accordingly, it is necessary for us to first identify and then address the proposed grounds of appeal.
Grounds of appeal
The proposed grounds of appeal as contained in the Amended Notice of Appeal filed by the father on 3 December 2012 (apart from Ground 2 which was abandoned) are as follows:
1.The learned Federal Magistrate erred in determining that the Social Security Appeal Tribunal (“SSAT”) decision of 16 June 2011 should be upheld on the basis that:-
(a)The SSAT erred as a matter of law in finding that the Appellant Father’s adjustable taxable income be set at $167,000.00 for the period 28 April 2008 – 31 October 2012;
(b)It was incorrect as a matter of law to determine that the entity [Burns] Consultancy Pty Ltd as trustee of the [Burns] Family Trust (referred to collectively as “the Business”) was the Father’s “alter ego for child support purposes”;
(c)It was incorrect as a matter of law to determine that the income of the appellant Father should be calculated based upon the sales and expenditure in respect to the Business;
(d)It was incorrect as a matter of law to calculate the Father’s income by “smoothing” the income for the Business over the 2008 and 2009 financial years despite there being no evidence to support the finding that it was appropriate to calculate income in that manner including accounting evidence;
(e)It was incorrect as a matter of law to ignore the evidence before the SSAT that the income of the Business during the 2008 financial year was an aberration due to the fact that the Business had been paid for the supply of $150,000.00 for stock which the Business had not in fact paid for (resulting in the income being skewed without having regard to the expense associated with it);
(f)It was incorrect as a matter of law to ignore the evidence before the SSAT that the income of the Business during the 2009 financial year was distorted by:-
(i) The purchase of two trucks during that financial year;
(g)It was incorrect as a matter of law to ignore the tax losses of the Business in the calculation of its profits;
(h)It was incorrect as a matter of law to find that the Father had a $1,700.00 per month gambling habit when the finding was unsupported by any evidence or otherwise inadequate reasons were given by the SSAT for such a finding;
3.The learned Federal Magistrate otherwise:-
(a) Failed to take into account relevant considerations;
(b)Failed to correctly identify matters which were matters of law;
(c)Misdirected himself by determining that the matters in issue were not questions of law capable of determination;
(d)Failed to make a proper assessment under s 117 of the Child Support (Assessment) Act 1989 of whether it was just and equitable to uphold the decision of the SSAT.
4.The learned Federal Magistrate erred in failing to remit the matter back to the SSAT to seek appropriate evidence as to:-
(a) The “smoothing” of income;
(b) Accounting evidence about the Business;
(c)The issue of bias, and particularly the basis upon which a diary note of a conversation on 19 May 2010 between the SSAT and the Respondent Mother (exhibit three to the appeal) came about by way of direct explanation from the Respondent Mother.
4A.In the premises of the learned Federal Magistrate’s failure to so remit the matter for further evidence as to the said diary note, apprehended bias arose.
5.The learned Federal Magistrate erred in failing to take into account all reasonable material before it including the affidavits of [Mr G] filed 31 May 2011 and 14 June 2011.
6.The learned Federal Magistrate erred in failing to provide procedural fairness to the Father by alerting the Father’s legal representatives during the course of the appeal hearing that the learned Federal Magistrate would be disregarding the said filed evidence of Mr [G] on the grounds that leave was required for such evidence to be considered, in circumstances where the Father’s legal representatives were clearly relying upon the said material;
7.The learned Federal Magistrate erred in failing, upon discovering that the Court did not have before it the evidence relied upon by the SSAT in coming to its decision, to adjourn the appeal until that material could be placed before it;
8.In the premises of the failure of the learned Federal Magistrate to have regard to the relevant evidence, the discretion of the Federal Magistrate was (sic) miscarried.
(Emphasis in original)
In oral submissions counsel for the husband sought to group these grounds of appeal under three principal headings and address them collectively, namely:
1.Procedural fairness – Grounds 5, 6, 7 and 8
2.Apprehension of bias – Grounds 4(c) and 4A
3.Errors of law arising from factual errors – Grounds 1 and 3
It is convenient for us to address the grounds of appeal in the same way.
The nature of the appeal
Before addressing the proposed grounds of appeal it is necessary for us to comment on the nature of an appeal in the circumstances of this case.
At the commencement of the hearing we raised with counsel for the father what he understood to be the nature of an appeal to this court from the decision of a Federal Magistrate (now Federal Circuit Court judge) on an appeal from the SSAT. This arises because an appeal from the SSAT can only be on a question of law (s 110B of the Registration and Collection Act), and the issue is whether the appeal to this court is also so limited.
In response, Mr Selfridge proffered the opinion that the appeal to this court was so confined. In discussion though, it was suggested that that may not be the case because here there are grounds of appeal that raise complaints of a lack of procedural fairness and an apprehension of bias. However, those grounds raise questions of law themselves and thus their presence does not indicate that the appeal can be of a wider nature than on a question of law.
Our view is that the appeal to this court, subject to leave being granted, is not confined to whether the lower court made an error of law. There is no such limitation in the legislation, and there would seem to be no basis to exclude legitimate grounds of appeal that did not raise errors of law.
We observe that in the recent Full Court decision of Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 nothing was said by the Full Court which would suggest that the view we have taken is incorrect, and the appeal in that case seemed to proceed on the basis that its nature was no different than any other appeal that might come before the Full Court.
Application in an appeal to lead further evidence
On 18 April 2013 the father filed an Application in an Appeal seeking to adduce further evidence, supported by an affidavit sworn by his solicitor. At the hearing of the appeal counsel for the father indicated that the application was no longer pressed in relation to seven of the ten documents originally sought to be adduced. Thus, the father ultimately sought the following order:
1.Pursuant to Regulation 22.39 of the Family Law Rules 2004 the Applicant applied [sic] for an order that the Court receive the following further evidence on Hearing of the Appeal:
a.Letter of Shine Lawyers to Social Security Appeal Tribunal (SSAT) of 5 November 2012 and reply of SSAT dated
7 November 2012.b.Letter of Shine Lawyers to Federal Magistrates Court of Austarlia [sic] dated 25 January 2013 and Exhibit 3 on Hearing before Burnett FM dated 16 June 2011.
c.Decision of SSAT dated 9 August 2010.
At the hearing of the appeal counsel for the mother did not oppose the father’s “amended” application, on the basis that the documents referred to in paragraphs 1b. and 1c. above were sent to the Court pursuant to s 110K of the Registration and Collection Act. The letter identified in paragraph 1a. confirms this. Thus we propose to grant the application and receive the further documents.
Discussion
Grounds 5, 6, 7 and 8 – Procedural Fairness
The issue addressed in Grounds 5 and 6 relates to the two affidavits of Mr G filed respectively on 31 May 2011 and 14 June 2011. Those affidavits were prepared and filed for the purposes of the appeal from the SSAT. Mr G was the father’s accountant, and he was instructed by the father’s solicitors to provide a report from an accounting perspective “on various aspects of the findings and decision of the [SSAT]”. The first affidavit annexed the report, and the second affidavit corrected two minor aspects of that report.
At the commencement of the hearing before the Federal Magistrate this discussion took place between bench and bar:
MR McLEAN: Your Honour, I would also like to make sure that you have the affidavits of [Mr G] before you. There should be two of those.
HIS HONOUR: Yes, I do. Yes. I have those. Do you want me to have that material before me?
MR McLEAN: Yes. Thank you, your Honour.
HIS HONOUR: Okay.
(Transcript, 16.6.2011, page 3, lines 24-31)
Thus, these affidavits were before his Honour, and presumably that was sought to be done under s 110G(2) of the Registration and Collection Act. That subsection allows for the court to “receive further evidence” for the purposes of making findings of fact under ss (1). Subsection (1) provides as follows:
If a party to a review by the SSAT appeals to a court under this Subdivision, the court may make findings of fact if:
(a)The findings of fact are not inconsistent with findings of fact made by the SSAT (other than findings made by the SSAT as the result of an error of law); and
(b)It appears to the court that it is convenient for the court to make findings of fact, having regard to:
(i)The extent (if any) to which it is necessary for facts to be found; and
(ii)The means by which those facts might be established; and
(iii)The expeditious and efficient resolution of the whole of the matter to which the review by the SSAT relates; and
(iv)The relative expense to the parties of the court, rather than the SSAT, in making the findings of fact; and
(v)The relative delay to the parties of the court, rather than the SSAT, in making the findings of fact; and
(vi)Whether any of the parties considers that it is appropriate for the court, rather than the SSAT, to make the findings of fact; and
(vii)Such other matters (if any) as the court considers relevant.
The complaint in Ground 5 is that his Honour failed to take into account these affidavits, and paragraph [13] of his Honour’s reasons is highlighted. There
his Honour said this:
On that matter, the applicant relied upon the evidence of his accountant, included in his report dated 24 May 2011. However, that material was not placed before the decision maker and accordingly it is not available to be considered in the context of an application for judicial review without leave: s.110G (Registration Act).
(Footnote omitted)
His Honour was correct in saying that the material was not before the SSAT, but was clearly mistaken in suggesting that “leave” was required. It is apparent though that his Honour was looking to apply s 110G of the Registration and Collection Act, and that is demonstrated not only by his reference to that section but also by what his Honour said in footnote 8 to that paragraph of his reasons, namely:
The applicant seeks to rely upon financial material produced for this appeal. It takes issue with the factual findings of the Tribunal. However such material can only be received if that material satisfies s.110G(1) which in this case it does not because, contrary to s.110G(1)(a), it is inconsistent with the findings of fact made by the Tribunal.
Thus, his Honour was of the view that it was not open to him to take into account those affidavits, even though they were placed before him and relied upon; the findings of fact that his Honour was being asked to make on the basis of the contents of those affidavits were inconsistent with the findings of fact made by the SSAT, and those findings were not findings made by the SSAT as the result of an error of law. There was clearly evidence before the SSAT on which it could base its findings in this regard, and they were findings that were reasonable to be made on that evidence. We will explain the importance of that when considering grounds of appeal 1 and 3.
It was also the submission of the mother’s counsel that the affidavits sought to be relied upon did not in fact comprise factual material in any event. What those affidavits contained, and specifically referring to the report of the accountant, was an opinion as to the findings and decision of the SSAT on the facts before it, and that appears to be the case. Counsel further submitted that although the affidavits were put before the Federal Magistrate, it was clearly within the discretion of the Federal Magistrate whether he took into account the contents of those affidavits or not. Thus, it is said that paragraph [13] of
his Honour’s reasons can be seen to be the exercise by his Honour of that discretion.
That last submission by counsel also provides the answer to the complaint raised in Ground 6. In relation to that ground, we do not accept that it was necessary for his Honour to alert the father’s legal representative that he would be “disregarding” the affidavits when the father was seeking to rely on them. As his Honour identified in footnote 8 at [13], it was not open to him to take account of those affidavits because of the provisions of s 110G(1). Indeed, that was the point in effect made to the father’s solicitor during the hearing before
his Honour. When referring to the contents of the affidavits his Honour challenged the father’s counsel as to his ability to take them into account when they did not demonstrate an error of law, but rather put forward “facts” inconsistent with the facts as found by the SSAT. For example, his Honour said this:
HIS HONOUR: But this takes us back to where we started this debate,
Mr McLean, and that is what you’re really asking me to do – and it’s not what I’m allowed to do, it’s not what the Act says I should do and it’s entirely consistent with the principles of administrative law and that is that I should review the facts of the case. Ultimately, what we have here is a position where you say the tribunal got it wrong MR McLEAN: Yes.
HIS HONOUR: but in order for me to determine whether the tribunal got it wrong, I will need to hear all the evidence again and that’s not what I’m permitted to do under the legislation. I’m only permitted to hear matters pertaining to errors of law. If two reasonable minds can reach differing views that’s the end of it. It doesn’t matter that they got it wrong. It’s a matter of opinion and that’s just what happens. The decision-maker ..... It’s not a matter for this court to interfere. So I’ve got to say the more you take me into this material and throw up these arguments, the more persuaded I’ve become in my own mind that, in fact, this is not an error of law at all. This is just a question of the tribunal having come to a certain view based upon material and it was a view that was reasonably open to him and if that’s the case, whether they’re right or wrong, it’s not of any moment to this court because it’s not an error of law. It’s a matter of fact.
(Transcript, 16.6.11, page 16, line 37 to page 17, line 10)
Thus, the father’s legal representative could be under no misapprehension as to not only the provisions of s 110G, but his Honour’s concern about whether he could take that material into account.
Thus there is no merit in Grounds 5 and 6.
Ground 7 raises a complaint as to how his Honour dealt with the evidence that was before the SSAT.
Section 110K of the Registration and Collection Act provides that when an appeal is instituted, the principal member of the SSAT must cause to be sent to the court hearing the appeal, all of the documents that were before the SSAT and that are relevant to the appeal. It is common ground that this provision was complied with, and that is the subject of the letter referred to in paragraph 1a. of the documents placed before us by way of further evidence.
However, it is beyond doubt that sending the documents to the court hearing the appeal does not in fact result in those documents being before that court, or more importantly being admitted into evidence, and it is apparent from the transcript of the hearing before the Federal Magistrate that that was the case here (see transcript 16.6.11, page 4, lines 1-13). There was no application to tender them to his Honour, and all that emerges from the transcript is that counsel for the father indicated that he would be handing up documents from the material before the SSAT “piece meal as I come to them” (transcript 16.6.11, page 4, line 15). However, that did not occur. There was a subsequent discussion between his Honour and counsel as to the need for the material from the SSAT to be seen by the Federal Magistrate, but still none of that material was put before his Honour.
The specific complaint is that his Honour erred in failing to adjourn the appeal until the material could be placed before the court. However, we do not accept that that was an obligation on the Federal Magistrate. The onus was on the parties to put before the Federal Magistrate whatever material was sought to be relied upon, and we note that there was no application by either party to adjourn the proceedings for that purpose. Plainly then this ground of appeal must fail.
Having found no merit in Grounds 5, 6 and 7, we do not need to say anything about Ground 8 given that that ground must necessarily fail as a result.
Grounds 4(c) and 4A – Apprehension of bias
We have had great difficulty in understanding the complaints made in these grounds. In Ground 4(c) it is said that the Federal Magistrate erred in failing to remit the matter to the SSAT “to seek appropriate evidence as to … [t]he issue of bias.” Then in Ground 4A it is said that in failing to so remit “apprehended bias [presumably on the part of the Federal Magistrate] arose.” The issue relates to a diary note that was before the SSAT, and which was tendered to the Federal Magistrate (Exhibit 3). The contents of that note are set out in [51] of the Federal Magistrate’s reasons, and it refers to a telephone conversation between the mother and the “SSAT”. It seems to be alleged that some sort of assistance was thereby given to the mother.
In the father’s written submissions it is said that the SSAT should have questioned the mother about this conversation, and in not doing so “apprehended bias arose” (presumably on the part of the SSAT).
His Honour addressed this complaint in his reasons for judgment, and after citing the relevant test from the High Court decision in Johnson & Johnson (2000) 201 CLR 488, his Honour said this (at [56]):
From my review of the transcript of the proceedings, there is nothing in the manner in which this application was disposed of before the Tribunal to suggest the manner in which the Tribunal conducted itself demonstrated bias to the requisite standard, that being that of a reasonable and fair-minded person witnessing the proceedings of an administrative Tribunal.
We are not persuaded that the SSAT was obliged to ask questions of the mother as to this conversation, and particularly when it is plain that it was never suggested to the SSAT by the father that it should be investigated. Indeed, it is conceded that this issue was simply not raised before the SSAT, and on that basis alone this complaint cannot succeed. Further, we observe that the conversation was not a conversation between the mother and a member of the SSAT, but apparently with a member of the Tribunal’s registry staff, and we fail to see how in those circumstances the hearing before the SSAT can be contaminated as a result; there is no evidence that the Registrar did anything at all with the information. This is apart from the fact that if one considers what was said in the conversation, it is not apparent how that satisfies the test of an apprehension of bias.
As to Ground 4A we fail to see how the Federal Magistrate’s treatment of this issue can be said to raise a perception of bias on his part. That was not explained to us by the father’s counsel. His Honour’s task was to consider whether the SSAT had made an error of law in relation to this issue, and
his Honour found that that could not be established. Frankly, we have not been taken to anything in his Honour’s reasons or in the transcript of the hearing which would demonstrate apprehended bias on the Federal Magistrate’s part.
These grounds of appeal must also fail.
Finally, we observe that the other basis for suggesting bias on the part of the SSAT that was raised before his Honour, namely the manner and tone of the questioning of the father, was not the subject of a ground of appeal before us.
Grounds 1 and 3 – Errors of law arising from factual errors
Section 110B provides that a party to a review by the SSAT can only appeal from a decision on that review on a question of law (as opposed to a question of fact or process – Craig v State of South Australia (1995) 131 ALR 595 at 602-603).
The father says that the alleged errors by the SSAT identified in Ground 1 specifically are errors of law, whereas the mother says they are errors of fact which could not be the subject of an appeal to the Federal Magistrate.
The principles to be applied in making the distinction between an error of law and an error of fact for these purposes are well established, and were recited at length in his Honour’s reasons, but as sometimes occurs, it is the application of those principles which can create difficulty.
As to the principles, we note the authorities relied on by his Honour, all of which we agree with, but we can do no better than refer to the recent decision of the Full Court of the Federal Court of Australia (Jessup, Jagot and Nicholas JJ) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 where it was said by Jagot J (at [84]):
The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Bond at CLR 359-60; ALR 40-1; ALD 26-7) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” (as in Bond at CLR 366 and 367; ALR 46; ALD 31, Kostas at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.
(also see the discussion of the relevant principles in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10, at [49] and [50]).
We were also referred by counsel for the mother to a paragraph from a decision of Mansfield J in Comcare v Moon [2003] FCA 569. That paragraph is particularly apt for present purposes and it is instructive to quote it here.
His Honour said this (at [33]):
In any event, in my judgment, the finding of the Tribunal as to the nature and extent of the injury constituted by the condition was one available to it on the evidence. Care must be taken not to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound reasoning … If there was any evidence rationally and legally capable of supporting a finding of fact, then the finding of fact does not involve an error of law. That is so even if there is a significant body of evidence pointing to a contrary finding of fact. And the decision as to what evidence is to be accepted is a matter for the administrative decision maker and not for the court. It is not the function of the court on an application such as the present to review the Tribunal’s findings of fact and to substitute its view of the facts for those of the Tribunal.
(Citations omitted)
Applying the principles from those cases and others cited to us, to the errors alleged in Ground 1, at first blush it is difficult to see how they are errors of law; the complaint seems to be that there has been a wrong finding of fact by the SSAT. They could only be errors of law if the evidence that was before the SSAT could not reasonably support the findings.
In any event, we will address each of the alleged errors in turn.
As to Ground 1(a), it is submitted that the finding was wrong because the SSAT took the net income of the trust that operated the business over the 2007/2008 and 2008/2009 financial years, and “smoothed” the income to reach an annual figure.
In effect a preliminary issue raised by the father (Ground 1(b)) is that the Federal Magistrate erred in “upholding” the finding by the SSAT that the trust and company which is the trustee of the trust were the “alter ego” of the father, and that the income of the trust could be treated as the income of the father. It is said that that finding by the SSAT is an error of law.
Unfortunately, all that the father’s counsel put in his written submission in relation to this ground was that “the finding should have been that the Appellant’s shareholding in the Company and status as beneficiary of the Trust gave rise to a ‘financial resource’”. No basis was put for this proposition, and no authority was cited, and we cannot immediately see how the SSAT has erred in its finding, and consequentially how his Honour has erred in refusing to upset that finding.
In oral submissions we were taken to the findings by the SSAT in relation to this matter and it was submitted that the SSAT made those findings on the mistaken belief that the father had conceded that the trust and the company were his “alter ego”. It is said that a fair reading of the transcript of the hearing before the SSAT reveals that there was no such concession by the father. However, that is not how we read that transcript. This issue is broached at various places in the transcript, and although there are comments by the father which can be interpreted as him denying that the trust and the company were his alter ego, there were certainly examples of where the only interpretation of what he said is that that was in fact the case. For example, at transcript 12.7.10, page 42, line 8, the father said categorically that “I know it’s a separate identity and all that stuff but, I mean, the company is me”. In any event, as the Federal Magistrate recognised, ultimately this was a question of fact, and on the evidence before the SSAT it was well open to the Tribunal to reach that conclusion. There is no error of law here.
To return then to Ground 1(a).
The timing here is important. The hearing before the SSAT took place in
July 2010, and it delivered its decision in August 2010. That decision provided a child support assessment for the period 28 April 2008 to 31 October 2012. The submission was made to his Honour that the SSAT was in error by looking at the income of the trust over the 2007/2008 and 2008/2009 financial years, “smoothing” that out, and then applying that figure to calculate the income of the entire assessment period.
First, it is said in the father’s written submissions (in paragraph 12) that:
As a matter of principle, it is appropriate that a Tribunal or court consider the applicability of s 117 to each of the child support assessment periods, and a failure to do so can give rise to an appealable error.
(Footnote omitted)
However, that is not a submission that we accept. The father cites the decision in Hides & Hatton (1997) FLC 92-759, but as the father himself indicates, that was a case decided when assessments were for financial years; now they can run for any period of time.
Secondly, it is said in the father’s written submissions (in paragraph 14) that the “smoothing” process was an error of principle because it ignored:
…the clear evidence that there was an aberration in respect to the earnings of the trust during the 2008 year (clearly evidenced by comparison with the financial years immediately preceding and following) together with the fact that the (father) had purchased stock and two trucks in that year which affected the figures for the trust.
His Honour dealt with this at some length in his reasons and found that the SSAT were well aware of the 2008 figures as compared to the 2009 figures. Indeed, the difference in the figures was the very reason why the SSAT undertook the “smoothing” process; in other words, to take account of the difference. In any event, we agree with the Federal Magistrate’s assessment of this issue being one of fact and not law, and that the father was seeking an “impermissible merits review”. There were clearly facts before the Tribunal on which the Tribunal was able to base its decision in this regard and thus there can be no appeal therefrom; there is no error of law.
Thirdly, it is suggested that if a “smoothing” process was to be undertaken, then it should have included the six months of the 2006/2007 financial year for which the Tribunal had evidence. This was not raised before the Federal Magistrate as far as we can see, and for that reason alone this submission should be rejected, but in any event, it would not have been appropriate for the SSAT to include that six month period because it preceded the period of the assessment by some distance.
Fourthly, it is alleged that “the assessment also ignored losses which appropriately could be applied in respect to the taxation payable by the Company”. However, again, as the Federal Magistrate emphasised, that allegation is incorrect. The SSAT were well aware of the loss situation of the company and expressly dealt with it. The SSAT said this in its reasons:
37.The balance sheet discloses that minimal profit is distributed to
Mr [Burns]. Rather, it is dispersed via the company. The company’s accumulated tax losses have the effect of significantly reducing the tax payable by Mr [Burns].38.In these circumstances, the evidence supports a finding that
Mr [Burns] earns an income of approximately $167,000 per annum before tax. Because of the accumulated tax losses this income is largely tax free. The Tribunal does not however propose to adjust the income to take account of this, rather it proposes to regard this taxation benefit as an element of financial capacity available to
Mr [Burns].Thus, his Honour found no error in how the SSAT dealt with this issue, and it has not been demonstrated to us that his Honour erred in so finding. Indeed, even if the SSAT was wrong in its finding, it had not been established that that was an error of law within the meaning of that phrase as ascribed to it in the authorities, and thus there was no basis for an appeal to be brought to the Federal Magistrate’s court on this topic.
We find no merit in this ground of appeal.
We have addressed Ground 1(b) above, and as can be seen Grounds 1(c), (d), (e), (f) and (g) are no more than a repeat of the specific issues raised in Grounds 1(a) and 1(b). Indeed, no written or oral submissions were directed to these further grounds, and that confirms our view about them. Thus there can be no merit in the complaints raised therein given our findings in relation to Grounds 1(a) and 1(b).
That leaves Ground 1(h), but this ground is misconceived. In the written summary it is claimed that the Federal Magistrate “found it was not relevant whether the SSAT made a finding that [the father] had a $1,700 per month gambling habit”. However, that is not what the Federal Magistrate said.
His Honour recorded (at [50]) that this was a matter “not expressly addressed in submissions either orally or in writing”, and dismissed the ground on that basis.
His Honour did query how it is contended that “this matter, if indeed it is correct, has contaminated the decision of the Tribunal”, and frankly we have the same concern.
In any event, in these circumstances, there is no basis to suggest that the Federal Magistrate erred in his treatment of this issue. We add though that it is not apparent how this can be an error of law on the part of the SSAT, and to repeat that is an issue that arises generally in relation to the complaints made in Ground 1.
In summary then, we find no merit in Ground 1.
Ground 3 of necessity is in the same category. It comprises a series of bald assertions without providing any detail or particulars, and cannot be addressed in any meaningful way.
Grounds 4(a) and (b)
These grounds were not included in any of the groupings addressed by the father’s counsel in his oral submissions. However, there was one short sentence directed to these grounds in counsel’s written submissions. That suggests that “in light of the error identified in relation to Grounds 1 and 3 herein” the Federal Magistrate should have overturned the decision of the SSAT and remitted the matter for rehearing. Given that we have found that the Federal Magistrate made no error in his treatment of the complaints made in Grounds 1 and 3, these grounds also have no merit.
Before leaving the grounds of appeal, we observe that in his oral submissions counsel for the father suggested that the SSAT erred in law by not having regard to s 117 of the Assessment Act and in particular failed to consider all of the evidence as to the “financial resources” of the father. Counsel then attempted to explain this submission by expressing it as the SSAT failed to apply s 117 of the Assessment Act or the law surrounding it. In particular, counsel submitted that the SSAT needed to have expert evidence before it, for example from an accountant, and not to have that in reaching its decision was an error of law. We find this an extraordinary submission. As long as the findings made by the SSAT in applying s 117 of the Assessment Act are open on the evidence before it, then that is plainly sufficient, even though it is common ground that there was no expert evidence available to the SSAT, or indeed put before it by the father.
There is no doubt on the authorities that there can be errors of fact that are so significant that the decision cannot be justified, and thus that becomes an error of law (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). However, that is simply not the case here.
Further, as the Federal Magistrate explained in his reasons (at [29]-[32]) the SSAT did give proper consideration to the matters set out in s 117 of the Assessment Act, and there is no basis to suggest otherwise. We accept that the Federal Magistrate was correct in that assessment.
Conclusion
Having found no merit in any of the grounds of appeal, and given that the grounds were relied upon as establishing the basis for leave to appeal being granted, leave must be refused. Although the authorities provide for a less rigid application of the usual principles, we find that there is no error of principle here which has “affected the applicant’s substantive rights”, there is no substantial injustice caused to the father as a result, and there is no matter of general importance.
We observe that even if leave to appeal was granted, the appeal must fail because there is no merit in any of the grounds of appeal.
Costs
At the conclusion of the hearing we received submissions from counsel as to costs depending on the result of the appeal.
In the event the appeal was unsuccessful, the mother indicated that she would make an application for costs, but she wished to make further submissions. It is difficult to see how the father could resist an order for costs of his unsuccessful appeal unless there are matters of which we are unaware. Thus, if the issue of costs cannot be agreed, then the mother should file the necessary application within the time prescribed in the Family Law Rules 2004 (Cth) supported by any necessary affidavit and written submissions. The father can then respond as appropriate.
We also note that the orders made by the Full Court on 2 May 2013 provided for the costs of and incidental to the father’s adjournment application to be reserved to the Full Court. If the mother seeks to pursue an application for these costs that can be included in the application for costs that she files and can be the subject of the supporting affidavit and written submissions.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Hogan JJ) delivered on 28 March 2014.
Associate:
Date: 28 March 2014
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