Child Support Registrar & Crowley and Anor - [2015] FamCAFC 76

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & CROWLEY AND ANOR

[2015] FamCAFC 76

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Appeal from the Federal Circuit Court’s judicial review of a Social Security Appeals Tribunal decision – Where the Social Security Appeals Tribunal made a child support departure order in favour of the mother – Where the Federal Circuit Court of Australia overturned the decision made by the Tribunal and substituted its own decision for the decision of the Tribunal – Where the FCCA made errors of law with respect to its interpretation of s 117 of the Child Support (Assessment) Act 1989 (Cth) – Where the Full Court held that a child support departure applicant was required to establish one ground of departure under s 117(1)(b)(i) of the Child Support (Assessment) Act 1989 (Cth), as the Tribunal had previously held – Where the Full Court found that the FCCA had failed to distinguish the difference between the pre-requisite grounds which needed to be established by a child support departure applicant under s 117(2) of the Child Support (Assessment) Act 1989 (Cth) and the countervailing considerations in relation to the non-applicant parent under s 117(4) of the Child Support (Assessment) Act 1989 (Cth) – Where the Full Court found that it is not necessary to calculate arrears of child support for the purpose of considering hardship under s 117(4)(g) of the Child Support (Assessment) Act 1989 (Cth) – Leave to appeal granted – Appeal allowed – Orders set aside.

Bryant & Bryant (1996) FLC 92-690
Burns & Grint [2014] FamCAFC 48
Child Support Registrar & Crabbe and Anor (2014) FLC 92-062
Forbes & Bream [2010] FamCAFC 6
Gilmour & Gilmour (1995) FLC 92-591
Gyselman and Gyselman (1992) FLC 92-279
Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641
Hides & Hatton (1997) FLC 92-759
Liesert & Nutsch [1996) FLC 92-665
Piotto v Secretary, Department of Education, Employment and Workplace Relations [2010] FCAFC 48

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Veterans’ Entitlements Act 1986 (Cth)

APPELLANT:

Child Support Registrar

FIRST RESPONDENT:

Mr Crowley

By his Case Guardian

SECOND RESPONDENT:

Ms Stross

FILE NUMBER:

BRC

5457

2009

APPEAL NUMBER:

2014

DATE DELIVERED:

6 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland and Murphy JJ

HEARING DATE:

19 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2014

LOWER COURT MNC:

[2014] FCCA 1540

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Brennan

SOLICITOR FOR THE APPELLANT:

Lander & Rogers Lawyers

THE FIRST RESPONDENT:

No Appearance

THE SECOND RESPONDENT:

Self Represented

Orders

Leave to appeal the decision of Judge Coates made on 31 July 2014 be granted.
The appeal be allowed.
The Orders of Judge Coates made on 31 July 2014 be set aside.
Each party bear their own costs of and incidental to the appeal.
The Court grants to the first respondent, Mr Crowley, a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act in respect of the costs incurred by him in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym CSR & Crowley and Anor 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 45 of 2014
File Number: BRC 5457 of 2009

Child Support Registrar

Appellant

And

Mr Crowley by his Case Guardian

First Respondent

And

Ms Stross

Second Respondent

REASONS FOR JUDGMENT

On 8 October 2012, the Social Security Appeals Tribunal (“the Tribunal”) set the “adjusted taxable income” of Mr Crowley (“the father”) in specified amounts for two child support periods. That decision was made after more than one earlier review and appeal, the details of which are not relevant for present purposes. The effect of the instant Tribunal decision is to significantly increase the father’s child support liability for the parties’ two children aged seven and five.
The father appealed that decision to the Federal Circuit Court of Australia (“FCCA”). On 31 July 2014, Judge Coates made orders allowing the father’s appeal and setting aside the Tribunal decision. The Child Support Registrar (“the Registrar”) seeks the leave of this court to appeal, and if leave is granted, to appeal that decision. Ms Stross (“the mother”) appeared in person, and supported the position of the Registrar in this appeal.

Leave to Appeal

Leave to appeal to this Court from the FCCA exercising original jurisdiction under the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) is required by s 107A(1) of that Act.
Authority suggests plainly that a “less restrictive approach” than might otherwise apply in respect of leave to appeal against interlocutory decrees is appropriate in child support matters. (See, for example, Gilmour & Gilmour (1995) FLC 92-591, at 81,843; Hendy v Deputy Child Support Registrar and Anor (2001) 27 FamLR 641; and Forbes & Bream [2010] FamCAFC 6 at [39]).
We are of the view in any event that important matters of principle are raised by the appeal and leave should be granted.
Specifically, we agree with the overarching submissions made by counsel for the appellant Registrar that the decision of the primary Judge indicates a misapprehension of the process required by the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) in departing from administrative assessment of child support; that his Honour made departure orders consequent upon setting aside the Tribunal decision without a proper consideration of the relevant statutory requirements and, finally, that his Honour made an order that is ultra vires.

Facts Informing the Tribunal and FCCA Decisions

The mother is in receipt of a Centrelink benefit. Her lack of remunerative employment was found by the Tribunal as being unconnected with child support issues. That is not challenged.
The father suffers from a brain injury sustained in a car accident prior to the marriage and the birth of the children. His income consists of two forms of pension, both of which derive from his former employment as a member of the armed forces.
One of the father’s two pensions is paid from his superannuation provider, Military Super. The second is a total and permanent disability pension paid pursuant to the Veterans’ Entitlements Act 1986 (Cth). It is common ground that the Military Super is a “taxable pension or benefit” for the purposes of the Assessment Act and the administrative assessment of child support made thereunder, whereas the veterans pension is not.
From those combined sources of income, the father deposits approximately $400 per week into a superannuation account. The ultimate benefit payable from the superannuation investment is intended to provide for his residential care at an RSL facility when his parents, who assist with his care currently, are unable to do so.
The Tribunal found that this weekly amount was not “necessary in the sense explained in Gyselman”. (Tribunal reasons at [75], referring to the decision of this Court in Gyselman and Gyselman (1992) FLC 92-279). The finding of the Tribunal is central to the challenges to its decision made before his Honour and, in turn, central to his Honour’s decision allowing that appeal against it.
By way of background, in Gyselman (at 79,074) the Full Court of this court had explained that s 117(2)(a)(iii)(A)’s reference to:
… “commitments of the parent necessary to enable the parent to support'' … means commitments which are reasonably needed for that purpose. They are …commitments to ``support himself at a reasonable rate''. ``Necessary'' is used in contradistinction to ``unnecessary'' and should not be given any more stringent meaning. The views expressed by the Full Court in Tuck, supra, are appropriate.
The use of the word “necessary'' is not intended to produce an unrealistically low standard of living for the non-custodian. Where families separate, it is likely that in a number of cases that there will be insufficient income to support the two households at their prior standard or at a reasonable standard. Consequently, it is a matter of the balancing of competing values, namely the obligation of the absent parent to continue to support his children with, on the other hand, the need for that parent to continue to maintain himself at a reasonable level. …

Error is Conceded

The father, who is the first respondent to this appeal, is now represented by his mother as his case guardian. Neither she nor the father appeared before us. The mother, who is the second respondent to this appeal, represented herself before us. She also prepared and filed a written outline of argument herself. Meaning no disrespect to the mother, that document does not assist us. However, the outline does make it clear that the mother supports the Registrar’s appeal and that she seeks that his Honour’s orders be set aside.
The father’s summary of argument in this appeal was prepared by Mr Kirk QC. However, Mr Kirk did not appear. In that written outline, Mr Kirk concedes that, as he puts it, “Grounds 3 and/or 4 of the Notice of Appeal” is “likely to be successful”. We think it beyond doubt that the reference to Ground 3 is a typographical error and that it was intended that the concession be directed to Grounds 4 and 5 which assert:
(4)His Honour erred in paragraphs 131 – 133 of his reasons and by making Order 3 Order of 31 July 2014 by substituting his own decision for that of the [Tribunal] without regard to ss 110F and 110G of the [Registration Act]
(5)That Order 4 of the Order of 31 July 2014 is ultra vires and His Honour erred in so ordering.
Those grounds pertain to orders made by the primary Judge additional to those allowing the appeal and setting aside the Tribunal decision. Those orders are:
(3)That for the period 1 July 2010 to 30 June 2013, child support be assessed based on the [father’s] child support income set at $30,499.00.
(4)That, thereafter, the [father’s] child support income exclude his current pension entitlements under ss. 24 and 118A of the Veterans’ Entitlement Act of 1986.
The concession made by the father’s counsel is properly and appropriately made.
If his Honour was to substitute his own departure order for that of the Tribunal, it was necessary for his Honour to adopt, or make, all such factual findings as are needed to satisfy the exercise of that power (ss 110F, 110G of the Registration Act). Thereafter, his Honour was required to himself apply the “highly structured discretion” within the “strict three-step process” required by s 117 of the Assessment Act. (Hides & Hatton (1997) FLC 92-759, at 84,351 citing Gyselman.) His Honour plainly did not do so. The challenge to Order (3) must succeed.
His Honour’s power (and, indeed, this Court’s power) is to be found only in relevant statutory provisions. No legislative provision gives the power to make Order (4). In our view it is plainly ultra vires. The challenge to Order (4) must also succeed.
It follows that an order must be made that the appeal be allowed in respect of Orders (3) and (4) and those orders set aside.
As we have earlier said, the other grounds of appeal contain a broader challenge to the primary Judge’s application of the provisions of the Assessment Act. For the reasons which follow, that challenge has merit with the consequence that the balance of his Honour’s Orders should also be set aside.

The Additional Grounds of Appeal

In oral argument, counsel for the Registrar (who did not draw the grounds of appeal) abandoned the second of the two parts to Ground 1. As argued, the remaining grounds of appeal are:
1.His Honour erred in finding and determining the matter on the basis that:
a.s117(2)(a)(iii) Child Support (Assessment) Act 1989 is a consideration of a “mandatory nature”;
b.“it is not actually the case” that s117(1)(b) Child Support (Assessment) Act only requires the establishment of one ground for departure, before considering the factors in s 117(4) and (5) of the Child Support (Assessment) Act.
2.His Honour erred in elevating the [father’s] medical condition beyond that which is permissible under the Child Support (Assessment) Act and, in particular, s117 of the Act.
3.His Honour erred by finding it is necessary to calculate arrears of child support for the purpose of considering hardship s117(4)(g) Child Support (Assessment) Act.

The Nature of Appeals to This Court and the Grounds of Appeal

The statutory provisions relating to the process of appeal from decisions of the Tribunal have been discussed at length in earlier decisions of this Court. Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 110B of the Registration Act). Appeals to this court arising from those appeals are not so restricted. (See, for example, Child Support Registrar & Crabbe and Anor (2014) FLC 92-062; Burns & Grint [2014] FamCAFC 48).
One of the consequences of appeals to the FCCA lying only on a question of law is that appeals from those decisions to this Court must assert – at least in the overwhelming majority of cases – that the FCCA has erred in finding (or not finding as the case may be), that an error of law has been made by the Tribunal. That in turn results, almost of necessity, in this court examining whether the Tribunal decision was affected by an error of law, limited of course to those matters properly raised in the grounds of appeal. (See for example, albeit in a different context, Piotto v Secretary, Department of Education, Employment and Workplace Relations [2010] FCAFC 48 at [27]).
A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision and with a precision which bears that restriction firmly in mind.
The difference in the nature of the appeals before the FCCA from those in this Court (which are not so confined) is also productive of a need to draw the grounds of appeal to this Court with great care and precision. Those precisely-drawn grounds should embrace what was said by the Full Court of the Federal Court in Piotto, above, in respect of analogous legislative provisions:
27.The appeal to a Full Court is an appeal as of right: s 24(1)(a), Federal Court of Australia Act 1976 (Cth), but in a matter such as the present, the Full Court may be restricted to deciding whether the primary judge has erred in deciding that the Tribunal did or did not err on a question of law, and so itself be confined in effect to deciding if the Tribunal erred on a question of law.
The grounds of appeal from the decision of the Tribunal with which the primary Judge was concerned here exhibit a failure to appreciate the confined nature of the appeal to the FCCA from a decision of the Tribunal. Many of the grounds assert errors of fact not law and such errors of law as were asserted were not pleaded with clarity and precision. Indeed, a proper analysis of the grounds by his Honour could have permitted the appeal against the decision of the Tribunal to have been dismissed peremptorily on that basis.

The Appeal to This Court

Ground 1 – Misinterpretation of s 117

This ground (which again, we point out, was not drawn by counsel who argued the appeal) is expressed, with respect, oddly. As currently drafted, it obscures the necessarily meticulous distinction earlier outlined by solely referring to errors made by his Honour, during his Honour’s review of the Tribunal decision, with little reference to the Tribunal decision itself or the grounds his Honour was tasked with considering. That is to say, the ground proceeds upon an independent basis, as if the Tribunal decision had not occurred. The passage earlier quoted from Piotto pertains.
In oral argument, in expansion of the ground as drawn, counsel for the Registrar effectively conceded that the ground needed to be recast. In effectively doing so, and embracing the principles just discussed, counsel outlined a broader challenge than that to which the ground, in terms, suggests. We accept, however, that the ground as drawn encapsulates the essential error to which counsel’s broader challenge was directed.
Counsel submitted, accurately and correctly in our view, that his Honour went “beyond the grounds of appeal as pleaded and argued before him” and, in doing so, “made further significant errors of principle”. Counsel also submitted, again correctly in our view, that his Honour’s reasons exhibit, with respect, a misinterpretation of s 117(2) of the Assessment Act. Specifically, central to his Honour’s finding of error of law by the Tribunal is an erroneous conflation by his Honour of the identification of a ground of departure with a consideration of the justice and equity of a departure order pursuant to s 117(1)(b)(ii) and s 117(4).
That fundamental error led to erroneous findings by his Honour of errors of law said by his Honour to have been made on the part of the Tribunal. The Tribunal did not err in law; the Tribunal identified, with respect correctly, the issues which it was necessary for it to consider by reference to the case sought to be made out by the applicant mother:
17.The issues to be considered by the Tribunal are whether Reason 8 [i.e. s 117(2)(c)] is established; whether a change of assessment would be just and equitable; and whether the change would be otherwise proper.
The Tribunal concluded that this case was “out of the ordinary” (Gyselman at 79, 065) and special circumstances in respect of the only ground relied upon by the mother (s 117(2)(c)) were established:
24.The Tribunal will consider under a later heading the proper costs of the children. It is sufficient for present purposes to observe that the reasonable cost of maintaining the children considerably exceeds $3000 per year. The Tribunal considers there are special circumstances in this case, because it is unusual for a parent to have a sizeable component of their overall income that does not form part of their adjusted taxable income. Use of the administrative provisions produces a rate of child support well below the actual cost of raising the children. This is unjust and inequitable, in the Tribunal’s view. A ground of departure, Reason 8, is established.
His Honour held:
36.The [mother] also submitted that the Tribunal did not rely upon ss.117(2)(a)(iii) of the Assessment Act and found the special circumstances established under ss.117(2)(c)(ia) - and it only had to find one ground of departure.
37.That is not actually the case, if other relevant issues need to be considered.
…
51.It cannot be the case that in making a finding under one of the grounds only, as is put forward by the [Registrar], is the end of the matter if there are other relevant factual circumstances to consider. Such must then be considered. It is only then that if the conclusion is an obvious mistake of fact, that such would not be set aside because factual mistakes are not questions of law – because there is a requirement that relevant issues are considered.
In light of the broader challenge earlier referred to, this ground was not pressed before us on appeal. However, it is important that we state briefly that his Honour is, with respect, plainly wrong. An applicant for departure need only establish one ground of departure as the terms of s 117(1)(b)(i) (among other provisions) makes clear.

That error pervades his Honour’s reasons. His Honour said (referring, it seems, to the “other relevant issues” mentioned at [37] quoted above):
38.Even though the decision did not refer to ss.117(2)(a)(iii), that it referred to evidence about the cost of the retirement village and what would be required in the future leads me by inference to conclude that the tribunal did consider ss.117(2)(a)(iii), even though it was not stated by a reference to the section.
…
43.Paragraphs 71 to 77 of the [the tribunal] decision addresses what may or may not occur in relation to care for [the father] at a later stage of his life, especially in a retirement facility, but the claim is that it ignored the mandatory nature of s.117(2)(a)(iii) - which is to consider the “commitments… necessary to enable the parent to support himself”. [italics in original]
With great respect to his Honour that, too, is plainly wrong. The Tribunal did not refer to s 117(2)(a)(iii) because it is a separate ground to the only ground relied upon by the applicant mother (s 117(2)(c)(ia)). The former ground was never relied upon by the mother.
Having found that the ground upon which the mother did rely was established (a finding which, it should be noted, was not challenged before his Honour), the Tribunal proceeded to consider separately the commitments of the father that were “necessary” within the meaning of s 117(4)(e) as that section, and clear authority of this Court, demands.
As was properly and fairly pointed out by counsel for the Registrar, questions relevant to each of s 117(2) and s 117(4) can overlap. However, they remain separate inquiries. (See Gyselman; Hides & Hatton, above). Here, his Honour also misdirected himself fundamentally by referring to a ground of departure that was not relied upon by the mother. As counsel for the Registrar submits before us, no question of law could have arisen in respect of s 117(2)(a)(iii) because no issue in respect of that ground of departure was engaged before the Tribunal. Axiomatically, no error of law could have been made by the Tribunal in respect of that ground.
His Honour plainly erred in finding error of law on the part of the Tribunal. Ground 1 must succeed.

Ground 2 – The Father’s Medical Condition

To the extent that his Honour’s reasons pertaining to the father’s medical condition and resultant needs were related to a ground of appeal before him, ground 1 before his Honour refers specifically to [74] of the Tribunal’s reasons. To the extent that it can be accepted that it alleges an error of law at all, the ground asserts that the Tribunal’s conclusion “that it would not be necessary for [the father] to move into a retirement village” was not open on the evidence before the Tribunal. That error as pleaded before the primary Judge is plainly not sustainable. Reference to [74] and [75] of the Tribunal’s reasons for decision make it abundantly clear that there was ample evidence from which the Tribunal’s conclusion could be drawn.
As to the asserted error embraced by Ground 2 before us, we have, with great respect to the drafter, considerable difficulty in understanding what is meant by it. It is by no means immediately clear from its terms what appealable error is alleged by the assertion that his Honour “elevat[ed] the [father’s] medical condition beyond that which is permissible under the [Assessment Act]”. A ground pleaded in those terms appears to assume that the Assessment Act permits some “elevation of medical condition” – something which is not apparent from the terms of the Assessment Act and something which, without more, makes little sense to us.
The written outline filed on behalf of the Registrar (also, it should be said, not prepared by counsel who argued the appeal) seeks to emphasise the error made by his Honour in respect of the application of s 117 to which we have earlier referred. It suggests that the error lies in his Honour’s finding “… that [the Tribunal] ought to have taken into account [the father’s] personal medical situation in determining whether a special circumstance or ground for departure existed”. The written submissions go on to contend that, “[s]ections 117(2)(c)(ia) and (ib) do not require consideration of the reason for the income generated or which does not form part of a liable parent’s adjusted taxable income” and, ultimately, that his Honour “… impermissibly elevated the [father’s] medical condition to a ground of departure, and the reason why the decision should be set aside”.
His Honour found:
128.In this matter the Tribunal has rightly taken into account the DVA pension, but it then does not refer to the s.117(2)(c)(ia) or (ib) considerations, the situation the [father] is in so as to receive that DVA pension. Those two subsections look to the income, property and resources and earning capacity in circumstances where medical evidence of his severe brain injury has been accepted, but without reference to what is required by s.117(2)(c), that: “that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child...”.
129.In my view this mistakes the provisions which were to be applied in this matter. The Tribunal was required to at least refer to this section because the [father’s] medical condition itself is a special circumstance of the case. This is an error beyond mistake of fact.
(emphasis in original)
His Honour appears to suggest that the Tribunal erred in law by failing to take account of the father’s “necessary commitments” in determining whether “special circumstances” were made out for the purposes of s 117(2)(ia) and (ib).
The Tribunal found that the ground specified in s 117(2)(c) of the Act was established. That finding was not challenged by reference to any ground pleaded before his Honour. Integral to that finding by the Tribunal is a finding that there were “special circumstances” in the case. That finding was also not challenged by reference to any ground pleaded before his Honour. Again, with respect, his Honour appears to have misapprehended the provisions of the Assessment Act and their inter-relationship.
His Honour also referred to the issue of the father’s medical condition earlier in the reasons:
46.The tribunal has fallen into error in attempting to go beyond the medical evidence to make predictions itself, based on what care would be available in the RSL facility, remaining unconvinced that the RSL facility would provide such care. The RSL facility will provide a home, but the evidence is that the [father] will pay for the care he will require because of his acquired brain injury and upon payment, the evidence is that such care will be available. This was never a question of what care the RSL facility will provide, and therefore the question to be asked has been mistaken by the Tribunal.
47.I accept that the Tribunal, when focusing on the question of whether expenditure proposed for the retirement centre constituted a necessary commitment, actually ignored the mandated consideration of determining the “commitments… necessary to enable the parent to support himself”.
(Emphasis in original)
The assertion made by his Honour at the first of the two paragraphs just quoted appears to be an assertion that the Tribunal erred in law by making two findings for which there was no evidentiary foundation: what type of care was available at a particular facility and that the particular facility would provide that care. In our view, the Tribunal made no such findings and to suggest otherwise is, with respect, a misreading of the Tribunal’s reasons.
The Tribunal examined carefully the expert evidence of Dr M. The Tribunal sought for itself, as s 103N(2) of the Registration Act permits, evidence (that was not put before it by the father) as to the type of care and services offered by the facility. The Tribunal then compared carefully the evidence of the father’s needs with the evidence of what was offered by the facility and thereby determined whether providing present income for the future services offered by that particular facility was a commitment “necessary for [the father] to support” himself in deciding if the mooted departure was just and equitable (s 117(4)(e)) when compared with the primary obligation of both parents to support their children. Having done so, the Tribunal sought from the father’s then counsel submissions as to “ … the [father’s] needs to save for case management and attendant care costs . (Tribunal Reasons [76]) (emphasis added).
That is, contrary to the finding by his Honour at [47], not only did the Tribunal not “ignore” the “mandated consideration”, but it obtained evidence for itself in respect of it, posed the correct question for itself and, with respect, answered it correctly.
In our view, his Honour clearly erred in finding an error of law by the Tribunal in respect of conclusions reached by it concerning the “commitments necessary” for the father to support himself.

Ground 3 – Arrears of Child Support and Hardship

As has been seen, ground 3 of the appeal before us contends that his Honour erred “by finding it is necessary to calculate arrears of child support for the purpose of considering hardship in s117(4)(g)” of the Assessment Act. That ground of appeal reflects the contention of error in ground 2 of the appeal before his Honour. His Honour appears to be referring to that ground at [56] of the reasons:
56.The question of law said to be raised is that because the tribunal did not quantify the arrears it could not have arrived at the conclusion that the [father] would suffer no hardship when he began paying those arrears.
Yet, his Honour’s reasons thereafter refer to a number of other matters, not apparently related to ground 2, which appear to form the foundation for the findings ultimately made in respect of the issue of hardship. Those reasons commence with his Honour quoting from the Tribunal’s reasons for decision at [82] – [84]:
82. The Tribunal has calculated that after payment of various necessary expenses, [the father] has an amount of approximately $71 per week left to meet child support and any other expenses. As previously mentioned, on an income of $62,720 for [the father] and $15,941 for Ms [Stross], the annual rate of child support would be $9,778. This is equivalent to $188 per week. This would leave [the father] with $283 per week. In these circumstances, the Tribunal is satisfied that payment of child support on the basis of [the father]’s full income will not cause him hardship.
83. In her change of assessment application, [the mother] sought an increase to the annual rate with effect from 14 April 2009. At the hearing, [the mother] did not submit that the rate should be set at any particular figure, but rather that [the father’s] total income should be taken into account. While it would be open to make a change of assessment from April 2009, the Tribunal considers it would be just and equitable to make it from 1 July 2010, in circumstances where it would have been open to [the mother] to apply earlier, but she did not do so.
84. [The father] will have arrears to pay, because he has been paying a reduced rate under the stay order. If he cannot access the funds in the [superannuation] account, he will be able to pay off the arrears over time without suffering hardship.
Thereafter, his Honour recognises that the challenge as posed by ground 2 appears to be a factual challenge in respect of which an appeal to the FCCA does not lie and his Honour proceeds to frame a “question of law” different to that asserted in ground 2 before him:
58.The arrears then are calculable because they arose from the time the [father’s] rates of payment of child support were increased.
59.The finding the tribunal arrived at appears to be a factual conclusion, which in itself cannot be challenged, but the results may be if a question of law arises.
60.That question is whether the tribunal has considered hardship for the [father], as it is required to do by the Act.
His Honour does not appear to us to make any finding in respect of an error framed in those terms. In any event, it could not be contended that the Tribunal failed to consider at all the question of hardship “as it is required to do by the Act”. Indeed, the very passages from the Tribunal’s reasons quoted by his Honour are themselves evidence of the Tribunal having done so.
Having stated the purported question of law in the manner just referred to, his Honour turned to what he asserted was a different question, again arising from what the Tribunal had said at the paragraphs quoted above:
64.My first supposition was that there was no substance in this ground of appeal.
65.However, in reading the three paragraphs again – paragraphs 82 to 84 – a statement was made, although I was not referred to it in either submission.
66.The statement by the tribunal is its conclusion in paragraph 84, that: “If he cannot access the funds in the [superannuation] account, he will be able to pay off the arrears over time without suffering hardship”. [Italics in original].
67.The tribunal is clearly alert to the fact that the arrears have to be paid, and its resolution is for the [father] to access his superannuation funds – the very funds he is to use for his future accommodation, or pay the arrears off over time.
His Honour thereafter turns to a lengthy consideration of Regulations applicable to superannuation interests and other matters which, his Honour suggests, pertain to whether the father might be able to access his superannuation. His Honour concludes:
76.The mere reference to accessing the [father’s] superannuation does not consider an important component of its own decision, that the [father] may access his superannuation account.
77.To make that decision – and indeed it was a decision - the Tribunal was required to consider the circumstances which allow access to such a fund.
78.That must, as a matter of law, consider the superannuation regulation’s intent which allows the superannuation fund’s trustee to exercise a discretion as to releasing funds on the grounds of hardship.
79.While the Tribunal does not have to state its decision with precision, as a matter of law it does have to consider what its governing legislation intends it to consider, and the legislation intends the Tribunal to consider hardship when it considers a departure from administrative assessment of child support.
The discussion concludes with his Honour expressing a “suspicion” that the superannuation fund “… would not release an amount to pay child support arrears because it would not be apparent that the [father] could not meet his ‘immediate … living expenses’” (at [81]).
It appears that his Honour contends – particularly at the conclusion of [67] above – that the Tribunal made an error of law by finding that the father could access his superannuation without regard for the regulatory framework governing the same.
If that be the finding, we consider, with respect, that it misunderstands or misinterprets the Tribunal’s findings. Contrary to his Honour’s assertions, there is in fact no finding by the Tribunal to the effect that the father will, or must, use his superannuation to fund arrears of child support. Rather, in considering the issue of hardship in its proper broader context (one of a number of relevant considerations referable to s 117(4) of the Assessment Act), the Tribunal found that if the accessing of superannuation funds cannot occur, no hardship in the relevant sense will result from meeting arrears from income. No error of law is asserted, or identified, in respect of that finding.
The ultimate findings made by his Honour in respect of this issue repeat that misapprehension or misinterpretation:
79.While the tribunal does not have to state its decision with precision, as a matter of law it does have to consider what its governing legislation intends it to consider, and the legislation intends the tribunal to consider hardship when it considers a departure from administrative assessment of child support.
80.The tribunal decision does not consider the discretion given to the superannuation trustees to release or not release superannuation on the ground of hardship. In my reading of the regulation, the discretion is an unfettered exercise of pure discretion, not the judicial discretion exercised by judicial bodies, and there appears to be no demand that the trustee either actually consider a request or give reasons for any decision taken.
81.Given that one of the circumstances would be that “the person is unable to meet reasonable and immediate family living expenses”, as stated in the regulation, I suspect that the fund would not release an amount to pay child support arrears because it would not be apparent that the [father] could not meet his “immediate….living expenses”.
82. In that case the tribunal then states that he can pay the arrears off over time, which would not only threaten his planned future, but it may threaten his immediate daily living expenses.
83.There is not even reference to the terms of hardship as used in the child support acts and as used in the superannuation regulation – and whether there is a difference because the regulation is reference to severe financial hardship.
84.As to the component of the decision that the [father] can pay the arrears off over time, there was no reference to such time or quantification of how much would have to be paid regularly.
85.At paragraph 47 of the decision the tribunal recognised that the [father’s] only substantial asset was the $43,000 in his [superannuation] fund, and the finding that he could access it or pay off arrears later required the arrears to be actually quantified. It would be then that the Tribunal was in a position to determine the question of hardship.
86.On the reasoning applied, the tribunal has not determined the hardship factors affecting the [father] according to law, and thus a question of law is raised.
87.I need to refer to the submissions put forward by the parties.
88.The [father] contended that the tribunal mistook the income of the respondent mother in a manner not allowed by s.117(7A)(b)(ii), in that the provision prevents parenting payments to be taken into account, but the tribunal states its finding at paragraph 39 and 40 of the decision, and if there is a mistake, it is factual in nature and not an issue which can then be determined under s.110(B).
89.The [registrar] refers me to findings of the tribunal which are factual findings, and I agree with that, however, I was not addressed on the statement about accessing his superannuation or merely paying off arrears within the legal framework I have referred to.
90.As I have stated, a question of law is raised and the decision should not be upheld in this particular case - even though I do not have to overturn the decision, however, given that the [father] is a person who cannot gain better income sources because of an acquired (severe) brain injury, the decision ought be set aside.
The only question of law to which his Honour appears to there be referring is, we apprehend, that relating to the superannuation regulations. No error of law is made by the Tribunal in that respect.
By way of corollary, we are not entirely certain that his Honour has dismissed as a factual question the error asserted in ground 2 before him and restated by his Honour at [56] quoted above. To the extent that his Honour did find an error of law on the part of the Tribunal emanating from the failure by the Tribunal to calculate arrears, it appears to emanate from the findings made at [69] of the reasons:
69.So while the arrears are calculable, the tribunal did not calculate them to determine the effect on the [father’s] plan to accommodate and care for himself when his parents, who gave evidence of their ages being 65 (his mother) and 68 (his father) cannot look after him. Nor was there further reference to their view that they did not want the [father] housed in a boarding house, which must be a possibility if he cannot make provision for a retirement facility.

We have earlier said that it could not be argued reasonably that the Tribunal “failed to consider” hardship by reason of failing to quantify and specify the amount of any arrears. The relevant arrears - by reference to the very findings of the Tribunal quoted by his Honour - are calculated by reference to the difference between what the father was paying and the departure amount as and from July 2010. Figures are articulated by the Tribunal (for example at [4]; [82], [85] - [87] of the Tribunal’s reasons) which make it abundantly clear that the Tribunal considered carefully the question of hardship by reference to that evidence (noting, of course, that “… in this area there is likely to be hardship both ways”. Gyselman, above, at [141]).
The failure to quantify arrears is not, of itself, an error of law. At [56] of the reasons, his Honour appears to recognise that the failure to quantify arrears must otherwise be referable to findings which do amount to an error of law: for example that the amount of arrears is such that the only available inference is that hardship was, contrary to s 117(4)’s requirement, not considered or, perhaps, that there is no proper evidentiary foundation for a finding of no hardship.
No ground of appeal before his Honour was in such a form and neither was any finding made by his Honour. His Honour does not articulate any error of law to that effect.
For the sake of completeness we should record that not only is no error of law by the Tribunal revealed, but that its decision was plainly open to it. The findings – and figures – referred to by the Tribunal reveal plainly in our view that the finding with respect to hardship was made (albeit implicitly) by reference to an approximation of the amount of arrears due. In that respect, there is no need for a “microscopic examination” of the figures; a “broad brush approach can be taken”. (Bryant & Bryant (1996) FLC 92-690, citing with approval Kay J in Liesert & Nutsch (1996) FLC 92-665).
We agree, as Ground 3 of the appeal before us contends, that the primary judge erred by finding that it is necessary to calculate arrears of child support for the purpose of considering hardship (s 117(4)(g) of the Assessment Act).
Ground 3 also succeeds.

Conclusion

Orders 3 and 4 made by his Honour must be set aside by reason of the (correct) concession made in written submissions by then senior counsel for the father.
The remaining three grounds of appeal (as amended) are all made out. The consequence is that the remaining orders made by Judge Coates should be set aside.
This Court is empowered to make such decision which, in our opinion, ought to have been made in the first instance. (s 107A (5) of the Registration Act). No evidence placed before this Court would permit this Court, for itself, to make findings essential to the making of a departure order and neither the written submissions on behalf of the father nor the self-represented mother before us suggests that we could do so. It follows that the orders of Judge Coates should be set aside, the effect of which being that the decision made by the Tribunal on 8 October 2012 will stand.

Costs

The Registrar does not seek an order that either respondent should pay their costs. It is appropriate that each party shall bear their own costs.
Although self-represented, the father has incurred some costs in respect of the appeal. The mother did not contend before us that she had incurred any costs or disbursements in respect of the appeal. The appeal has plainly succeeded on a question of law. We consider it appropriate that costs certificates pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) be granted to the father.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 May 2015.

Associate: M.C.

Date: 6 May 2015