COC15 v Child Support Registrar

[2016] FCCA 224

FEDERAL CIRCUIT COURT OF AUSTRALIA

COC15 v CHILD SUPPORT REGISTRAR & ANOR [2016] FCCA 224

Catchwords:
CHILD SUPPORT – Administrative Appeals Tribunal (Social Security Division) – whether the Tribunal failed to have regard to the applicant’s evidence – whether the Tribunal applied the correct test in relation to the definition of income and financial resources under s.117(4) – whether there was sufficient evidence to support the Tribunal’s reasons – no jurisdictional error – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.43, 44, 44A, 44AAA

Child Support (Assessment) Act 1989, s.117(4)

Applicant: COC15

First Respondent: CHILD SUPPORT REGISTRAR

Second Respondent: COD15

File Number: SYG 2422 of 2015

Judgment of: Judge Street

Hearing date: 9 February 2016

Date of Last Submission: 9 February 2016

Delivered at: Sydney

Delivered on: 9 February 2016

REPRESENTATION

Counsel for the Applicant: Ms T Davy

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley

Counsel for the Second Respondent: Ms E Cohen

ORDERS

1. The amended notice of appeal is dismissed.

2. The amended notice of cross-appeal is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $7500.

4. The second respondent pay the first respondent’s costs fixed in the sum of $1000.

IT IS NOTED that publication of this judgment under the pseudonym COC15 v Child Support Registrar & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2422 of 2015

COC15

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

COD15

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.44AAA of the Administrative Appeals Tribunal Act 1975 in respect of a decision of the Tribunal made on 12 June 2015. 

2. The Tribunal set aside the decision under review and substituted a decision to depart from the Child Support Assessment by:

   - varying Ms COC15’s adjusted income to $246,750 from 15 July to 31 December 2014 and $200,000 from 1 January 2015 to 30 April 2016;

   - increasing the annual rate of child support payable by Ms COC15 by $31,000 from 1 January to 31 December 2015 and by $15,750 from 1 January to 30 April 2016. 

3. Pursuant to that source of jurisdiction, an appeal to this Court is only a question of law under s.44 of the Administrative Appeals Tribunal Act.  The applicant filed an amended application purporting to identify the questions of law under the grounds of appeal as follows:

   1. The Tribunal misinterpreted the terms “income” and “financial resources” as used in section 117(4) of the Child Support (Assessment) Act 1989.

   2. The Tribunal, in the exercise of its discretion under sections 98B and 98C of the Child Support (Assessment) Act 1989, failed to take into account the following relevant considerations expressly provided by the said legislation, namely whether it would be just and equitable as regards the child and the liable parent to make a departure order having regard to:

   a. the income, property and financial resources of the Appellant; and

   b. any hardship that would be caused to the Appellant by the making of the order.

   3. The Tribunal erred in law in that it made findings as to the Appellant’s financial resources which were unreasonable.

   Particulars

   a. The Tribunal when considering the financial position of the company overestimated the Appellant’s income and financial resources by ignoring the actual expenses that the company had incurred to earn income;

   b. The Tribunal failed to undertake a calculation which determined, given the income, property and financial resources of the Appellant and the Appellant’s necessary commitments, whether the Appellant had the capacity to pay for the school fees of the child.

   4. The Tribunal erred in law in that it failed to give adequate reasons as to its findings as to the income and financial resources of the Appellant.

4. Ground 1 fails to identify any question of law.  Counsel from the bar table endeavoured to reformulate paragraph 1 so as to identify a question of law relating to the financial resources and the income of the applicant.  The way in which that reformulation was put was said to give rise to a question of law by reason of what the Tribunal did not say and by reason of the fact that the Tribunal made no reference to the whole of the documents.  In so far as one of the re-formulations was that financial resources include liabilities, no such ground arises as it is clear that the Tribunal did take into account liabilities

5. The applicant contended that the question of law in relation to ground 1 could be derived from what was said in paras.18 to 34 and, in particular, paras.28 to 33.

6. I accept the first respondent’s submission that the applicant was seeking to engage in an impermissible challenge to the merits of the matter. There is no substance in the proposition that the Tribunal misunderstood the expression income or the expression financial resources used in s.117(4) of the Child Support Assessment Act 1989 (Cth) and it is no basis to draw any such inference.

7. Nothing said on behalf of the applicant identified ground 1 as discloses an arguable question of law within s.44AAA and s.44 of the Administrative Appeals Tribunal Act. 

8. The applicant sought to cavil with the Tribunal’s reasons in relation to taking into account liabilities that the applicant or the company of the applicant might face or might have, as well as the taxable exposure of the applicant, this was an applicant who had on the Tribunal’s finding engaged in conduct that masked part of her income. 

9. It was suggested from the bar table that this was a mistake.  There was no such finding to support that proposition.  Further, the Tribunal did not accept as accurate the financial information in terms of the projected income and expenses advanced by the applicant on behalf of her company.

10. The Tribunal made findings in relation to the intermingling of the applicant’s personal expenditure and company expenses.  It was in those circumstances that the Tribunal came to make findings in relation to the applicant having a significant income and also have financial resources through the operation of her company.

11. It is apparent that the Tribunal was alive to the concept of tax in its finding that those financial resources and significant income would equate to a taxable income of at least $200,000.  There is no substance in the proposition that the Tribunal failed to take into account liabilities and no substance in the proposition that the Tribunal failed in some way to take into account tax exposure.

12. It was not necessary for the Tribunal to make findings on each of the arguments advanced by the applicant nor was the Tribunal required to refer in its reasons to every document or in its reasons to the whole of the documents.  There is nothing in the Tribunal’s reasons to suggest that the Tribunal did not have regard to the whole of the evidence in the findings that it made. 

13. Ground 2 also failed to identify any proper question of law to enliven the Court’s jurisdiction under s.44AAA and s.44 of the Administrative Appeals Tribunal Act.  Counsel for the applicant endeavoured to reformulate a question of law which, again, was advanced as being able to be gleaned from what the Tribunal did not do and also what the Tribunal did.

14. The applicant, again, relied upon paras.28 to 33 as well as paras.70 and 80 to 82 in seeking to advance the existence of a question of law raised by ground 2.

15. It is clear from the Tribunal’s reasons that it addressed the statutory considerations required and identified in para.12 of the Tribunal’s reasons. 

16. Ground 2 is an impermissible challenge to the adverse findings of fact made by the Tribunal.  The Tribunal expressly referred to the consideration of whether it would be unjust or inequitable to prevent the existing assessment to remain and the Tribunal considered whether a departure from the administrative assessment would be just and equitable. 

17. The Tribunal also considered the issue of hardship in relation to the applicant.  There is no substance in ground 2.  Ground 2 fails to identify any arguable question of law. 

18. In relation to ground 3, it was contended that it gave rise to a question of law in relation to the findings made, in particular, sentences in paras.29, 30, 31, 33 and 70.  Counsel sought to advance the argument that there was no evidence to support the findings made and alternatively that the findings were unreasonable. 

19. The no-evidence ground cannot be sustained.  The transcript was not tendered and it is clear from the Tribunal’s reasons that a hearing was held and, in the absence of the transcript, the argument that those findings were not the subject of evidence could not succeed.  Further the reasons, read as a whole, disclose reference to evidence that supports the findings made.  On this basis the no evidence ground is without substance. 

20. In relation to the contention that the findings in those paragraphs were unreasonable, it cannot be said that those findings lack an evident and intelligible justification.  The assertion of unreasonableness in relation to the Tribunal’s reasons is without substance.  Ground 3 again fails to identify any arguable question of law. 

21. Counsel sought to refer to a calculation performed in the applicant’s submissions that it was said the Tribunal should have undertaken.  That does not identify any question of law or identify any unreasonableness in the Tribunal’s reasons.  The assertion that the Tribunal overestimated the applicant’s financial resources is patently seeking to cavil with the adverse findings made by the Tribunal.  Ground 3 fails to identify any arguable question of law. 

22. In relation to ground 4, it was suggested that there could be extracted the question ‘do the Tribunal’s reasons comply with s.43 of the Administrative Appeals Tribunal Act.  Counsel for the applicant contended that there was a failure to comply with that requirement in respect of paras.28 to 33, 34, 67, 70, 77 and 82. 

23. To the extent that the question posed, reformulated by counsel, is whether the Tribunal’s reasons comply with s.43 of the Act, I find on their face that they do.

24. Insofar as the applicant sought to attack the particular paragraphs, and the findings made in those paragraphs, the reasoning of the Tribunal was open and the findings cannot be said to lack an evident and intelligible justification.  Ground 4 fails to make out any question of law or arguable question of law. 

25. For these reasons, the amended notice of appeal should be dismissed. 

26. There was also an amended notice of cross-appeal. I accept the submissions of the first respondent that the amended notice of cross-appeal, insofar as it refers to the decision of the senior case officer, fails to enliven any jurisdiction of this Court under s.44AAA of the Administrative Appeals Tribunal Act. 

27. No argument was developed in relation to jurisdiction in respect of the Child Support Assessment Act 1989. It is, accordingly, unnecessary to consider its intersection with the avenue of appeal, given by s.44AAA of the Act and the original jurisdiction under the Child Support Assessment Act.

28. Counsel on behalf of the second respondent endeavoured to reformulate a question of law in respect of the period, the subject of the increased rate of child support concerning school fees. The amended notice of cross-appeal fails to identify any question of law enlivening the Court’s jurisdiction under s.44A and s.44 of the Act.

29. No error of law is identified by reference to para.77 of the Tribunal’s reasons, and there is no basis upon which orders of the kind identified in the amended notice of cross-appeal could be made.  For these reasons the amended notice of the cross-appeal should be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 February 2016