COG15 v Child Support Registrar
[2015] FCCA 3480
•23 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COG15 v CHILD SUPPORT REGISTRAR & ANOR | [2015] FCCA 3480 |
| Catchwords: CHILD SUPPORT – Administrative Appeals Tribunal (Social Services & Child Support Division) – whether the Tribunal failed to apply the correct test – whether the Tribunal failed to take into account relevant material – no jurisdictional error – application dismissed. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.103T, 103X, 110B Child Support (Assessment) Act 1989, ss.98S, 117 Migration Act 1958, s.430 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 Gyselman & Gyselman (1992) FLC 92-279 |
| Applicant: | COG15 |
| First Respondent: | CHILD SUPPORT REGISTRAR |
| Second Respondent: | COH15 |
| File Number: | SYG 3263 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 23 December 2015 |
| Date of Last Submission: | 23 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The notice of appeal is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym COG15 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 3263 of 2015
| COG15 |
Applicant
And
| CHILD SUPPORT REGISTRAR |
First Respondent
| COH15 |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal to the Court under its jurisdiction that was conferred under s.110B of the Child Support (Registration and Collection) Act 1988 (Cth) in respect of a decision of the Tribunal made on 2 September 2014 under the Child Support (Assessment) Act 1989 (Cth). The right of appeal to this Court under s.110B of the first mentioned Act is confined to an appeal only on a question of law. The notice of grounds of appeal of the applicant are as follows:
1. Has the Tribunal failed to construe properly the legislative provisions applicable when finding that it was permissible to make a single determination for the period of 1 November 2013 to 31 December 2015?
2. Has the Tribunal failed to construe properly the legislative provisions applicable when finding that it was permissible of [COH15] to change work patterns to part-time employment so that [COH15]could remove her son, [X] from after school care at paragraph 55 of the Tribunals reasoning?
3. Has the Tribunal failed to construe properly the legislative provisions applicable when finding that there is no practical difference in the financial capacity of a person and a company under that person's control for the purposes of income calculations at paragraph 29 of the Tribunals reasoning?
4. Has the Tribunal demonstrated that a reviewable error has not been made by way of adequate reasoning to explain how they arrived at the finding that the medical evidence tendered and accepted by the Child Support Agency is no longer to be considered at paragraph 45 of the Tribunals reasoning?
5. Has the Tribunal failed to construe properly the legislative provisions applicable when finding that [COG15] illness should not be considered to have impacted [COG15]’s earning capacity at paragraph 45 of the Tribunals reasoning?
6. Has the Tribunal made a reviewable error by ignoring the irrefutable evidence that Mr [Y] & [COG15] have entered into a legally binding loan agreement at paragraph 34 of the Tribunals reasoning?
7. Has the Tribunal erred by construing incorrectly the legislative provisions applicable when finding that the income, earning capacity, property and financial resources of [COG15]’s mother, Mrs A [COG15], can be considered a financial resource of Mr [COG15] at paragraph 35 of the Tribunals reasoning?
8. When the Tribunal substituted the Tribunals view of What would be acceptable business expenses incurred by The [COG15] Company Pty Ltd under [COG15]’s control at paragraph 26 has the Tribunal made such a significantly erroneous finding that was not reasonably open to Tribunal based on the tendered evidence?
9. Has the Tribunal failed to construe properly the legislative provisions applicable when finding at paragraph 68 that Mr [COG15] can and should rely on borrowings to meet his and the children's needs?
10. By solely focusing on the income of the [COG15] Company Pty Ltd and ignoring the forecasted loss of [COG15] Company Pty Ltd has the Tribunal incorrectly construed the legislative provisions applicable when finding that Mr [COG15]’s potential earning capacity was equivalent to the income of [COG15] Company Pty Ltd?
11. Has the Tribunal demonstrated that a reviewable error has not been made by way of adequate reasoning by not including any mention of the tendered evidence requested by the Tribunal in the form a Profit and Loss Statement of the [COG15] Company Pty Ltd?
The Court has received into evidence an appeal book that identifies the notice of appeal, the Tribunal’s decision, documents provided by the Child Support Registrar, directions made by the Tribunal, the first set of documents provided to the Tribunal, the second set of documents provided to the Tribunal, the third set of documents provided to the Tribunal, the fourth set of documents provided to the Tribunal, the fifth set of documents provided to the Tribunal and the transcript of the proceedings before the Tribunal.
There was also read, by way of background, an affidavit of the applicant, and the applicant chose to read two affidavits that had been filed by the first respondent. Those affidavits were admitted subject to relevance. No submission has been made identifying the relevance of those two affidavits. The affidavit of Mr B and the affidavit of Mr S are rejected on the grounds of being irrelevant.
At the commencement of the hearing, the original court book was not amongst the material provided to this Court and may have been in the chambers of another judge of the Court or in the registry or otherwise misplaced. Steps were put in train to seek to identify whether the original court book misplaced exhibit in these proceedings could be obtained, and no such document or no such produced to the Court. The first respondent had a copy of the original court book, which was handed up to the Court. The Court marked that copy of the original court book and the index as separate exhibits. The applicant expressed uncertainty as to what material was contained in that copy court book marked as exhibits.
The Court handed down the marked exhibits to the applicant, indicating that the Court understood the material to be a copy of the original court book and directed the applicant to look at the exhibits that had been marked to identify whether or not they were a copy of the applicant’s appeal book. Notwithstanding the direction made by the Court, the applicant declined to look at the material. It was in those circumstances that the Court was satisfied that the copy of the appeal book marked as exhibits is a proper copy of what was originally filed by the applicant.
At the commencement of the hearing, the Court identified that cross-examination would be limited to half an hour without further leave of the Court and that oral submissions would be limited to half an hour without further leave of the Court. There was no cross-examination requested by either party. The applicant commenced his oral address and engaged in an exercise of asking the Court questions about matters of substantive law, seeking to characterise them as procedural questions to interrogate the Court. The Court declined to be interrogated by the applicant and directed the applicant to get on with his submissions.
In the course of the applicant’s endeavour to interrogate the Court, the applicant made a remark that was capable of being treated as a contempt of Court. The applicant was warned not to engage in that conduct again, and to the applicant thereafter refrained from any further step of that kind. In the course of the applicant’s submissions, the applicant descended into a speech about justice that was not responsive to, or in development of, the grounds of his notice of appeal. The Court interrupted the applicant to direct him to focus on putting his submissions either in support of his notice of appeal or in answer to the first respondent’s case.
The applicant then commenced focusing upon his grounds of appeal, in the course of which he made a remark defamatory of a third party, and again the Court directed the applicant to refrain from using his opportunity to address the Court to defame other persons and indicated that otherwise his right of oral hearing would be curtailed. Again, the applicant then refrained from any further inappropriate remarks in relation to third parties.
The applicant orally developed two arguments. The first related to the proposition that the Tribunal must have erred in law in its approach to the assessment application because it had, in essence, determined an adjustable taxable income over what the applicant said was a period that was not permitted by the Act. The applicant referred to the decision of the Tribunal that refers to the applicant’s adjusted taxable income being $90,000 from 1 November 2013 to 31 December 2015.
The decision of the Tribunal is not to be read with a keen eye for error, and it is clear that the reference to the taxable income was a reference to the taxable income per annum. The period of 1 November 2013 to 31 December 2015 in relation to an adjusted taxable income of $90,000 does not of itself give rise to any error of law by the Tribunal. The applicant also put that because the period involved exceeded a period of 12 months, the Tribunal was required to separately consider each of the type of issues identified in Gyselman & Gyselman (1992) FLC 92-279.
Contrary to the applicant’s contention, it is clear that the Tribunal carefully considered each of the relevant steps required under the legislation in relation to the application it was considering. I accept the first respondent’s submissions that in this case, s.98S(2) and (3) of the Child Support (Assessment) Act, read with s.103T(1) of the Child Support (Registration and Collection) Act, empower the Tribunal to make the decision made by the Tribunal. The Tribunal considered whether there was a ground to change the assessment in relation to the applicant and, in the course of considering that issue, considered the income and financial resources of the applicant.
The Tribunal came to a finding that it was satisfied that the outcome of the assessment that had been made was unjust and inequitable because it did not provide for the applicant to provide a proper level of support for the children or for him to provide support at a similar level to others with similar capacity.
The Tribunal went on to consider whether there were special circumstances to warrant the adjustment and the Tribunal found there were special circumstances in this case related to the applicant’s income and financial resources that made the outcome of the assessment unfair. The Tribunal found that the ground to change the assessment under s.117(2)(c)(ia) of the Child Support (Assessment) Act therefore applied to this case.
The Tribunal then proceeded to consider whether it would be just and equitable to make particular changes to the assessment. The Tribunal took into account the duty to support the children and the income, financial resources, property and earning capacity of the children and the parents. The Tribunal also identified the proper needs of the children and also considered in relation to the applicant the issue of hardship or any other necessary commitments. The Tribunal found that the making of the proposed determination would result in a contribution from both parents to the children’s support that reflects their capacity.
The Tribunal found that making the proposed determination would not cause hardship to either party or either of the children. The Tribunal said it was satisfied that the making of the proposed determination would ensure that the parents meet their duty to support the children and would further the objects of the Act. In those circumstances the Tribunal found it was just and equitable to make the proposed determination.
The Tribunal then turned to determine whether it would be otherwise proper to change the assessment. The Tribunal found it was otherwise proper to make the proposed determination given the relevant capacity of each parent to support the children. It was in those circumstances the Tribunal found there as a ground to change the assessment and that it was just and equitable and otherwise proper to make the proposed determination.
For those reasons, the Tribunal set aside the decision on review and substituted the decision of the proposed determination to the effect that the applicant’s adjusted taxable income per annum is $90,000 from 1 November 2013 to 31 December 2015. I reject the applicant’s argument that the Tribunal failed to comply with the statutory regime or that this is a case where there was some departure from the substance of the principles identified in Gyselman.
I accept the first respondent’s submission that the approach adopted by the Tribunal was consistent with the decision in Child Support Registrar v Ahern [2014] FamCAFC 105 at [72]. Accordingly, there was no error of law by the Tribunal in its approach to the adjustment as alleged by the applicant.
The applicant also advanced a proposition that the Tribunal had failed to take into account relevant material. The applicant developed this argument by reference to an identification of pages in an appeal book that had been prepared and lodged by the applicant. Paragraph 14 of the Tribunal’s decision referred to one of the volumes that was tendered in front of the Tribunal as having pages A1 to A127.
One of the volumes of the court book tendered by the applicant was marked exhibit B3. It has page numbering on it from A128 to 135. Those pages commence with a letter from the applicant dated 1 August 2015 providing further material to the Tribunal pursuant to a direction made on 17 July 2014 by the presiding member of the Tribunal. The material so provided was expressly referred to by the Tribunal in para.30 of the Tribunal’s reasons. The proposition developed by the applicant that there had been relevant material not taken into account is entirely lacking in substance.
The difference in the page numbering in the appeal book prepared by the applicant is not a basis upon which there could be any conclusion drawn that the Tribunal did not have regard to the material that the applicant numbered pages A128 to A135. Indeed, the reference to that material in para.30 puts the matter beyond doubt. There is no error of law by the Tribunal in failing to have regard to any relevant material as alleged by the applicant.
In relation to the applicant’s grounds of appeal, none of the grounds identified properly formulate any question of law. It is because the Court is alive to the fact that the applicant is self-represented that the Court has endeavoured to deal with the issues that the applicant wished to raise. The applicant’s written submissions are detailed, well-researched and reflect a high degree of intelligence by the applicant. However, those written submissions fail to establish any real question of law that arises for determination on the decision of the Tribunal to enliven this court’s jurisdiction.
To the extent relevant, in relation to ground 1 of the notice of appeal, I reject the proposition that the Tribunal failed to properly construe legislation. Ground 1 fails to identify any arguable question of law.
In relation to ground 2, this is in substance a cavilling by the applicant with the merits of the determination by the Tribunal and fails to identify any arguable question of law. In relation to ground 3, the Tribunal said in para.29 as follows:
29. Mr [COG15] made much of the distinction between himself and the company at hearing. Apart from any relevant tax advantage, the tribunal's view is there is no practical difference in the financial capacity of a person who provides services through a company they control and a person who earns income personally for those services. Persons in both situations have the same access to income to meet their own needs and similar capacities to support their children.
That reasoning of the Tribunal as to the financial capacity of the applicant through a service vehicle, being a company, was linked to the Tribunal’s finding that the applicant has ongoing access to income generated from his personal exertions for the company despite his evidence to the contrary at the hearing. The reasoning of the Tribunal was open on the evidence before the Tribunal and does not involve any failure to properly construe the legislation. Ground 3 is, in substance, an impermissible challenge to the adverse findings by the Tribunal and fails to identify any arguable question of law.
In relation to ground 4, the Tribunal’s reasoning in para.45 was as follows:
45. Mr [COG15] gave evidence that he had a-limited earning capacity in the 2014 financial year because of illness. It is not necessary to make a finding on that evidence given the tribunal's findings about his capacity below based on evidence of his income and financial resources.
That reasoning in para.45 was in the context of the findings that the Tribunal had made about the applicant’s income and financial resources. What the Tribunal, in fact, said by reference to para.45 was that it was not necessary to make a finding on the applicant’s evidence that he had a limited earning capacity in 2013/2014 because of illness in light of its findings in relation to his income and financial resources. To this end, a further finding in respect to the applicant’s earning capacity was unnecessary in those circumstances. Nor did the Tribunal, in fact, find that the medical evidence tendered was no longer to be considered or that his illness should not be considered to have impacted on his earning capacity. Ground 4 is, in substance, again, an impermissible challenge to the adverse findings of the Tribunal and fails to identify any arguable question of law.
Ground 5 is, again, an impermissible challenge to the adverse findings of the Tribunal. The reasoning in para.45 did not involve any failure to properly construe the legislation and ground 5 fails to make out any arguable question of law.
Ground 6 is, in substance, a challenge to the adverse findings of fact by the Tribunal. It was a matter for the Tribunal to determine what evidence it did or did not accept. Ground 6 fails to identify any arguable question of law.
I accept the first respondent’s submissions that ground 7 proceeds on a false premise and that the proposition in ground 7 is not made out. What the Tribunal said in para.35 was as follows:
35. Mr [COG15]’s's evidence is he has transferred the borrowed money to his mother so that he can continue to borrow money from her for living expenses, as he has done in the past. He has given her the money borrowed from Mr H and she will give it back to him as necessary. The money is available to him to support himself and the children. In practice, he is in the same position as if he placed the money in a bank account in his own name.
The fact that loan moneys may have been transferred to the applicant from his mother does not amount to his mother’s resources being considered a financial resource of the applicant. Ground 7 is, again, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 7 fails to identify any arguable question of law.
What the Tribunal said in para.26 in relation to ground 8 is as follows:
26. Expenses for 2014 of $77,379 are not commensurately lower than expenses for 2013 of $95,659. In both years, they are much higher than the tribunal expects Mr {COG15] must meet to provide (employment omitted) services. It suggested at hearing that the usual expenses incurred by persons providing (employment omitted) services is depreciation on computer equipment, travel and expenses for a home office. The tribunal provided an opportun·1ty to Mr [COG15] to outline expenses incurred by him or the company to provide his services to (employer omitted) and to the other unnamed persons. He did not do so and the tribunal infers they are minimal.
The finding of the Tribunal was clearly based on evidence before the Tribunal and it cannot be said to lack an evident and intelligible justification. The proposition that the adverse finding was not open on the evidence has no substance. Ground 8 is, again, an impermissible challenge to the adverse findings by the Tribunal and fails to identify any arguable question of law.
In relation to ground 9, para.68 does not support the assertion advanced by the applicant. Paragraph 68 is as follows:
68. If the tribunal makes the proposed determination, Mr [COG15]will be the parent liable to pay child support from November to mid-April 20142 and the annual rate will be approximately $7,300. He gave evidence of significant capacity and readiness to borrow money to meet his needs and those of the children. The tribunal is satisfied he will continue to do so whatever child support liability is determined and finds that neither he nor the children will suffer hardship when they are in his care.
Ground 9 is, again, an impermissible challenge to the adverse findings of the Tribunal and does not identify any arguable question of law.
Grounds 10 and 11 can be dealt with together. Contrary to the applicant’s submissions, the Tribunal did not ignore the company’s 2013/2014 profit and loss statement and, on the contrary, it is clear that the Tribunal had regard to it at paras.24 to 26. The Tribunal considered that the expenses that were actually incurred by the company in 2013/14, like that said to have been incurred in 2012/2013, were much higher than the Tribunal accepted the applicant must spend to provide (employment omitted) services. The income generated by the company in the period from June to December 2013 for (employment omitted) services provided by the applicant was approximately $60,000.
The Tribunal had identified that it was necessary to look at what expenses the applicant would have related to his income. The Tribunal endeavoured to explore this issue with the applicant at the hearing, but to no avail, see the transcript at 52 to 35, .35 to 37, 39 to 39 to 46 and 53.1 to 7.
The Tribunal was entitled on the evidence to proceed upon the basis that the applicant, like others providing (employment omitted), would have incurred the usual expenses, namely, depreciation on computer equipment, travel and expenses, for the home office, as identified at para.26 by the Tribunal.
The Tribunal took into account those expenses in making its findings at para.27. Those findings were reasonably open and do not give rise to any arguable question of law. Further, contrary to the applicant’s submissions, what the Tribunal said at paras.26 to 27 was sufficient to comply with the obligations under the s.103X(3)(v) of the Child Support (Registration and Collection) Act.
The Tribunal gave adequate reasons for its decision and identified the material facts pertaining to the applicant’s income and expenses, and the evidence and the material on which they were based. Section 103X, like s.430 of the Migration Act 1958 (Cth), does not require “a line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal” or for the Tribunal to give “the sub-set of reasons why it accepted or rejected individual pieces of evidence” see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65], [67], per McHugh J.
I accept the proposition identified by the first respondent that reasons “means reasons why the Tribunal considers that the application should not be dismissed” not “reasons in detail with respect to each and every argument advanced by an applicant” see Callinan J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) CLR 323 at [316], [235]. The Tribunal gave proper reasons for altering the assessment in this case.
Accordingly, there is no arguable question of law disclosed by ground 10. The Tribunal provided proper reasons that were adequate so far as ground 11 seeks to challenge the same. It was not necessary for the Tribunal to mention the tendered pieces of evidence that the applicant makes reference to. However, it is apparent, as referred to above, that, in fact, the profit and loss statement of the company was referred to in the reasons of the Tribunal. Ground 11 fails to make out any arguable question of law.
In the applicant’s submissions, an allegation of what is said to be gender bias is alleged by the applicant. There is no ground of appeal identified in the notice of appeal to advance any ground of bias. Bias must be clearly alleged and properly proved. No case of bias is proved in the present case.
To the extent that the applicant has identified the adverse findings of the Tribunal as conduct to support the allegation of bias, no fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination on its merits by reason of that conduct. The applicant’s allegations of bias are totally lacking in substance and no arguable question of law in relation to bias arises in the present case. For these reasons, the notice of appeal dated 3 October 2014 is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 14 January 2016
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