Crowell and Bodrey (SSAT Appeal)

[2012] FMCAfam 870

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROWELL & BODREY (SSAT APPEAL) [2012] FMCAfam 870

CHILD SUPPORT – SSAT APPEAL – Second appeal from decision – consideration of grounds of appeal – whether error of law shown – constitution of Tribunal-appeal disallowed.

Child Support (Assessment) Act 1989 (Cth), ss.98S, 117
Child Support (Registration and Collection) Act 1988 (Cth), ss.110B, 110F
Social Security (Administration) Act 1999 (Cth), cl.10

Crowell & Bodrey (SSAT Appeal) [2011] FMCAfam 275
LDME v JMA (SSAT Appeal) (2007) FLC 98-034
Tasman & Tisdall [2008] FMCAfam 126
PJ & Child Support Registrar (2007) FLC 98-035
Byrne & Graham & Anor (SSAT Appeal) [2010] FMCAfam 1116
McCormack & McCormack & Anor (SSAT Appeal) [2011] FMCAfam 963
Manchester & Manchester and Ors (SSAT Appeal) [2011] FMCAfam 1215
Comcare v Broadhurst (2011) 192 FCR 497
Turner v Chaffey [2010] SSATACSA 12
Hattwheel v James [2010] SSATACSA 1
Hadley& Hadley [2008] FMCAfam 1252
Clauson & Clauson (1995) FLC 92-595

Applicant: MS CROWELL

Respondent: MR BODREY

File Number: HBC 919 of 2010

Judgment of: Baker FM

Hearing date: 10 May 2012

Date of Last Submission: 10 May 2012

Delivered at: Hobart

Delivered on: 21 September 2012

REPRESENTATION

Counsel for the Applicant: Ms Crowell in person

Counsel for the Respondent: Mr Bodrey in person

ORDERS

1. The Notice of Appeal (Child Support) filed 21 October 2011 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

HBC 919 of 2010

MS CROWELL

Applicant

And

MR BODREY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a decision of the Social Security Appeals Tribunal (“the SSAT” or “the Tribunal”) delivered on 21 September 2011.

2. The applicant is Ms Crowell (“the mother”).  The respondent is Mr Bodrey (“the father”).  The appeal relates to the father’s child support liability in respect of the parties’ daughter, X born (omitted) 1999 (“X”).

3. This is the second appeal from a decision of the SSAT in this matter.  The mother’s first appeal was a decision of Bender FM, published under the name of Crowell & Bodrey (SSAT Appeal).[1]

   [1] [2011] FMCAfam 275

4. Both the mother and the father represented themselves at all stages of these proceedings.

5. The mother relied upon the following documents:

   ·Notice of Appeal (Child Support) filed 21 October 2011.

   ·Outline of Case field 10 April 2012.

   ·Affidavit filed 10 April 2012.

   ·Financial Statement filed 10 April 2012.

6. The father opposed the mother’s appeal, but did not make any substantive submissions or rely upon any documents.

7. Also before the Court was the Decision of the SSAT in respect of its decision made on 21 September 2011 (“the Reasons”).  Additionally, the mother filed a copy of a transcript of the subject proceedings (“the Transcript”).

Background

Overview of the dispute between the parties

1. The parties separated in 1996.  Since that time, X has lived with the mother and spent limited time with the father.

2. From around September 2006 to November 2009, the father undertook full-time (omitted) study at the University of Tasmania.  At the time, the mother objected to this decision, claiming that the father should have obtained employment instead.

3. During his studies, the father was in receipt of a tax-free scholarship.  In November 2009, that scholarship ceased, and the husband ended his studies without obtaining qualifications.

4. The father claims that he has experienced financial difficulties following the cessation of the scholarship and claimed that he leads a frugal life.  The mother disputes this.  She claims that the father misrepresented his financial situation, and that he receives more money than he has disclosed.  She also believes that he should be taking better advantage of his earning capacity by obtaining employment.

The departure application

1. The father was administratively assessed to pay child support at the rate of $3,913.00 for the period from September 2006 to March 2009.  This was the period during which he was undertaking study, but before his scholarship ceased.

2. In September 2009, the mother sought a departure from the administrative assessment of child support on the following grounds:

   ·X’s special needs arising from her asthma, dietary allergies and chiropractic, podiatric and orthodontic treatment.

   ·X’s costs of education relating to public school fees, equipment such as stationery and a laptop, and activities such as camp and a language study tour.

   ·The father’s income, property, financial resources and earning capacity.

3. In November 2009, following the mother’s departure application but before the decision of the Child Support Agency (“the CSA”) was made, the father’s scholarship ceased.

4. On 12 December 2009, a Senior Case Officer determined that X’s medical costs amounted to a special need giving rise to a ground of departure.  Those medical costs were assessed at $3,648.00.  The Senior Case Officer excluded the amount sought by the mother in respect of orthodontic costs and the education costs.

5. The Senior Case Officer determined that the child support liability of the father should reflect the costs of X’s special needs. Of significance, the Senior Case Officer determined pursuant to s.98S(1)(a) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that the father’s child support liability should be increased to $4,200.00. Included in that sum of $4,200.00 was the sum of $1,824.00, being one half of X’s special needs costs.

6. The effect of this determination was that each party was liable for one half of the cost of X’s special needs.

The objection to the decision of the Senior Case Officer

1. The mother lodged an objection to the decision of the Senior Case Officer on the following grounds:

   ·The exclusion of education costs;

   ·The exclusion of orthodontic costs; and,

   ·The assessment of the father’s income for the period from April 2009 to November 2009, on the basis that the father was capable of earning a greater income than he was receiving at the time.

2. On 19 March 2010, the mother’s objection was disallowed by an Objections Officer for the following reasons:

   ·The education costs were ordinary costs or were related to decisions made by the mother, and did not amount to special circumstances justifying a departure from administrative assessment;

   ·The orthodontic costs could not be established by the mother in the absence of evidence from an orthodontic consultation; and,

   ·The assessment of the father’s income was not unfair.

The first decision of the SSAT

1. On 19 April 2010, the mother lodged an objection to the decision of the Objections Officer.  Pursuant to the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”), that objection was heard by the SSAT on 28 July 2010.

2. The Tribunal upheld the decision of the Objections Officer in respect of the education costs and the orthodontic costs.

3. The Tribunal then considered the income and earning capacity of the father.  It held that there should be a departure for that period during which the father received the scholarship, but no departure for the period after the scholarship ceased.  It was not established that the father was underutilising his income earning capacity.  The Tribunal found that the change in his income was due to the cessation of his scholarship, not an intention to avoid paying child support.  Accordingly, the SSAT set the father’s adjusted taxable income at $33,381.00 for the period from 1 April 2009 to 4 November 2009.

4. In light of its findings about the father’s income and earning capacity, the Tribunal determined that the father had a reduced ability to pay child support. It determined that, pursuant to s.98S(1)(j) of the Assessment Act, the figure of $3,648.00 should be added to the costs of the child for the period from 1 April 2009 to 30 October 2012. The Tribunal considered that this approach would ensure that X’s needs were met by each of the parents according to their income.

5. The effect of this decision was that the father was no longer liable to pay half of X’s medical costs.  Instead, he was liable to pay a proportion in accordance with his income and capacity to pay.

Appeal from the first decision of the SSAT

1. The mother appealed the decision of the SSAT. Pursuant to the Registration and Collection Act, that appeal was heard by the Federal Magistrates Court.[2]

   [2] Ibid

2. Of the mother’s grounds in respect of that appeal, the following are relevant to her current appeal:

   ·That the SSAT had erred in law by failing to include the total determined departure amount for special needs, being the sum of $3,648.00, into each year’s child support assessment for the period from 1 April 2009 until 30 October 2012; and,

   ·that the SSAT had failed to give proper consideration to s.117(4) of the Assessment Act.

3. In her decision, Bender FM found that the mother’s first ground of appeal was made out.  She held that the SSAT had erred by:

   ·Setting the costs of the child for an amount of $3,648.00 for the period 1 April 2009 until 30 October 2012, namely over a three year period rather than for each year, without giving any reasons for doing so; and,

   ·Failing to provide the mother with procedural fairness by not advising her that it was contemplating adding that sum to the costs of the child pursuant to s.98S(1)(j) of the Assessment Act.

4. In respect of her finding that the Tribunal erred in setting the costs for a three year period rather than for each year, Her Honour noted that:

   Whilst it is possible to speculate the Tribunal made an inadvertent error in not adding to its’ determination the words “per annum” after the figure of $3,648.00, such that the matter could perhaps, if it were before a court, be remedied under the “slip rule”, it is speculation only.[3]

   [3] Ibid at 69

5. Her Honour found that the Tribunal considered all relevant factors under s.117(4) in relation to whether their decision was just and equitable and her Honour was satisfied as to their conclusions in that regard. Her Honour dismissed the other grounds of appeal in respect of the father’s earning capacity and the additional educational costs of X.

6. Referring to the mother’s submission that the determination was not just and equitable in accordance with the provisions of s.117(4), Bender FM held that:

   Having determined that the SSAT has erred in law, it will be incumbent upon them , in reconsideration of this matter, to ensure that any further determination is just, equitable and otherwise proper pursuant to s.117(4). Accordingly it is not necessary to consider this aspect of the appellant’s argument in relation to this Ground.[4]

   [4] Ibid at 104

7. Her Honour ordered that the matter “…be remitted to the Social Security Appeals Tribunal for re-hearing.”

The second decision of the SSAT

1. At a pre-trial conference on 27 July 2011, the parties were directed to provide submissions on:

   (a)    How the costs of X’s special needs should be addressed in accordance with s.98S of the Act;

   (b)    The proposed determination of adding the costs for X’s special needs to the costs of the child; in particular addressing whether such an approach is just and equitable as defined by sub-section 117(4) of the Act, and otherwise proper as defined in sub-section 117(5) of the Act.

   (c)    On any period of departure as it relates to X’s special needs.

   (d)    On the constitution of the Tribunal for this review, in particular whether any member or members should be disqualified from hearing this matter.[5]

   [5] The Reasons at para 9

2. The remitted matter was heard by the SSAT on 26 August 2011.  The same members who had heard the original review constituted the second Tribunal.  They had before them detailed submissions of the mother, as well as the same documents which were before them at the original hearing.[6]

   [6] Those submissions were before me as Annexure “6” to the affidavit of the mother filed 10 April 2012.

3. The Tribunal identified two key issues for it to determine:

   (i)     Whether the costs of X’s “special needs” are $3,648 per annum or $3,648 for a three year period; and

   (ii)    Whether that same amount should be added to the costs of the child or should be addressed in some other way.[7]

   [7] The Reasons at para 12

4. In consideration of the first issue, the Tribunal made it clear that it had made a slip when it did not include the words “per annum” in its determination that the sum of $3,648.00 should be added to the costs of the child for the period 1 April until 30 October 2012.[8]

   [8] The Reasons at paras 17-19

5. The Tribunal then considered whether the special needs of X should be added to the “costs of the child”.  It determined that it did not need to hear new evidence, but could rely upon its previous findings of fact, which were not overturned on appeal.

6. The mother sought that the costs of X’s special needs be paid equally by her and the father, indexed according to the consumer price index.  The father sought that they be included in the costs of the child.

7. In respect of this issue, the Tribunal held as follows:

   27.    [The father] said that if the amount of child support he is required to pay is increased by half the amount of X’s special needs, he will be unable to pay this amount and a debt will accrue.  In other words, hardship would be caused to him.

   28.    In light of our previous findings of fact (which were undisturbed by the appeal) in relation to the matters to which subsection 117(4) of the Act required us to have regard, we concluded that [the father] is not able to pay more child support than the annual rate, fixed by section 65A of the Act, on his income since 24 November 2009.  By adding the costs of X’s special needs to the costs of the child, his contribution to the costs of her special needs will rise in accordance with his income.  We are also satisfied that [the mother] has resources from which she can meet X’s costs.

   …

   30.    Having carefully considered [the mother’s] written and oral submissions and all of the evidence before us, we conclude that a determination under paragraph 98(S)(1)(j) of the Act to vary the costs of the child, by adding the costs of X’s special needs ($3,648.00 per annum), is just and equitable and otherwise proper in this particular case.[9]

   [9] The Reasons at 27

The grounds of appeal

1. The mother argued seven grounds of appeal.  Those grounds were supported by extensive submissions, and by reference to several authorities.  As I have said, the mother was self-represented at all stages of these proceedings.  The grounds of appeal were drafted by her.

2. I have regard to the authority of LDME v JMA (SSAT Appeal)[10] and note that, as the mother was unrepresented, I should attempt to ascertain the real substance of her appeal.

   [10] (2007) FLC 98-034

3. I am of the view that there was some overlap between the grounds of appeal, and that some of the mother’s arguments in support of those grounds overlapped, or were argued in support of one ground when they supported another.

4. I consider that the real substance of the mother’s appeal was her contention was that the SSAT erred in law by failing to consider the matters referred to it by Bender FM for re-hearing de novo.  That contention was contained in the following grounds:

   ·Ground one, in which the mother asserted that the Tribunal made an error of law by including the sum of $3,648.00, being the established and agreed costs of special medical needs, into each year’s child support assessment for the period of 1 April 2009 until October 2012;

   ·Ground five, in which the mother asserted that the Tribunal failed to consider the matters in s.117(4) and failed to give proper consideration in determining what would be just and equitable, as directed by Bender FM in her Reasons; and,

   ·Grounds two and three, in which the mother asserted that the Tribunal made errors of law in respect of the evidence.

5. The mother argued in support of that contention as part of her submissions in respect of unrelated grounds.  She argued that:

   ·The SSAT erred in law by relying upon the evidence adduced by the father at the initial hearing, which the mother argued was false or misleading.  The mother made this argument during her submissions in support of grounds one and two.

   ·The SSAT erred in law by not admitting new evidence.  The mother made this argument during her submissions in support of grounds three and five.

6. The mother’s appeal contained two additional contentions.  Firstly, that the SSAT failed to apply or consider relevant case law, contained in ground four.  Secondly, that the SSAT erred in law by failing to afford the mother with procedural fairness, contained in grounds six and seven.  The substance of the procedural fairness contention was that:

   ·The Tribunal had not provided procedural fairness by reconstituting the same members of the Tribunal as those who heard the previous review to hear the second review (ground six); and,

   ·The Tribunal was not impartial in the way it conducted the hearing, and that an apprehension of bias arose (ground seven).

Relevant law

1. Section 110B of the Registration and Collection Act provides that a party may only appeal from a decision of the SSAT on a question of law.

2. I refer to the authority of Tasman & Tisdall,[11] in which Brown FM helpfully identified the circumstances in which an administrative tribunal such as the SSAT may be found to have made an error of law.  They are if it:

   i)      fails to construe properly the legislative provisions applicable;

   ii)     identifies the wrong issues or asks itself the wrong questions;

   iii)    ignores relevant material or relies on irrelevant material;

   iv)     fails to accord procedural fairness to the party before it;

   v)     makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic…[12]

Should the SSAT have considered the matter de novo? – Grounds one, two, three and five

[11] [2008] FMCAfam 126

[12] Ibid at 44

Did the SSAT err in law by relying on factual conclusions reached at the initial hearing?

1. Sections 110F(1) and (2) of the Registration and Collection Act set out the powers of the Federal Magistrates Court to orders in appeals from the SSAT. Those sections read as follows:

   (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.

2. At the conclusion of her Reasons, Bender FM held as follows:

   140.  I have determined to uphold the appeal on the basis of Ground 1 of the Notice of Appeal. Therefore the appeal is allowed as to the determination of the SSAT:

   -      to add $3,648.00 to the costs of the child for the period

   
   

   1 April 2009 until 30 October 2012.

   …

   142.  The appellant seeks orders that the matter be remitted to the SSAT in the event she is successful.  I am satisfied this is the appropriate manner in which to deal with this matter.

   143.Accordingly, the matter will be remitted for hearing to the SSAT for re-hearing on that aspect of the Appeal on which the appellant has been successful.[13]

   [13] Crowell & Bodrey (SSAT Appeal), above n 1, at 140

3. Bender FM made the following orders:

   1.     The appellant’s appeal against the decision of the Social Security Appeals Tribunal dated 8 October 2010 to add $3,648.00 to the costs of the child for the period 1 April 2009 until 30 October 2012 be allowed.

   2.     The matter be remitted to the Social Security Appeals Tribunal for re-hearing.

1. In making these orders by reason of her decision, her Honour remitted for re-hearing those aspects of the mother’s appeal about which she was successful – namely, the decision to add $3,648.00 to the costs of the child for the period 1 April 2009 until 30 October 2012.

2. The factual conclusions reached by the Tribunal at the original hearing were undisturbed by the appeal. The question for determination by the Tribunal at the re-hearing was this: In light of the undisturbed factual findings, should the special needs of $3,648.00 be added to the costs of the child for the period 1 April 2009 until 30 October 2012 and if so whether this was just, equitable and otherwise proper pursuant to s.117 of the Assessment Act?

3. The Tribunal took the following approach as referred to in the Reasons:

   25.    Ms Crowell said that she would experience considerable hardship if the costs of X’s special needs were added to the costs of the child in the administrative formula and that hardship was not considered previously.  The Tribunal addressed her claims of hardship in paragraphs 82 to 84 (which should also be read with paragraph 80) of the statement of reasons for our previous decision, and noted that Ms Crowell invited the Tribunal to revisit this issue on appeal.  However, FM Bender found that the Tribunal had considered all relevant factors under s.117(4) of the Act.  This means that the issue of hardship was not an aspect of the appeal on which Ms Crowell was successful and therefore not part of the matter remitted to the SSAT for re-hearing.

   …

   28.    In light of our previous findings of fact (which were undisturbed by the appeal) in relation to the matters to which subsection 117(4) of the Act required us to have regard, we concluded that Mr Bodrey is not able to pay more child support than the annual rate, fixed by section 65A of the Act, on his income since 24 November 2009.  By adding the costs of X’s special needs to the costs of the child, his contribution to the costs of her special needs will rise in accordance with his income.  We are also satisfied that Ms Crowell has resources from which she can meet X’s costs.

   …

   34.    Ms Crowell sought to revisit the issue of Mr Bodrey’s earning capacity.  The previous finding of the Tribunal on this issue was undisturbed by the appeal, and is therefore not an aspect of the matter remitted to the SSAT for re-hearing…

   35.    Ms Crowell also sought to revisit the Tribunal’s findings about her income, property and financial resources.  Once again, the previous findings of the Tribunal on that issue were not challenged on the appeal and remain undisturbed by the appeal… Even if the Tribunal had the power to revisit its previous findings in respect of Ms Crowell’s income, property and financial resources, we would not do so as those findings are consistent with the evidence before us. [14]

   [14] The Reasons at 25 and following

4. I am of the view that the Tribunal did not err at law in its approach of relying on the factual findings of the initial decision, which were undisturbed by the appeal decision.

Did the SSAT err at law by failing to consider new evidence?

1. As previously indicated, one ground of the mother’s initial appeal related to the Tribunal’s consideration of whether its determination was just, equitable and otherwise proper pursuant to s.117 of the Assessment Act. As Bender FM found that the SSAT had erred in law, Her Honour did not consider that it was necessary to consider that aspect of the mother’s appeal.

2. The mother submitted that the Tribunal would not consider her current circumstances regarding her ongoing capacity to meet the costs of the child.  She submitted that the Tribunal erred in law by failing to consider the hardship that its initial decision created for her and X.

3. The mother gave evidence of her recent diagnosis of a chronic pain condition. An examination of the Transcript reveals that she gave evidence about the medical costs of her recent diagnosis, her inability to meet those costs, and the physical pain and discomfort suffered by her as a result of being unable to meet those costs. This condition was not addressed by the Tribunal in its Reasons.  She submitted that when she explained her recent diagnosis that required treatment costing over $6,000.00, the Tribunal indicated to her that it needed to rely on facts as they were at the time it made their decision.[15]

   [15] The Transcript at 18

4. She gave evidence that the previous decision had resulted in hardship to her, because the child support had decreased by 75%.  This had a significant impact on her ability to meet the costs of X’s special needs.

5. At paragraph 25 of the Reasons, the Tribunal said that it addressed the mother’s claims of hardship in paragraphs 82 – 84 of the previous decision. The Tribunal noted that the mother invited it to revisit this issue and then referred to paragraphs 135 – 138 of the Reasons of Bender FM, who found that the Tribunal had considered all relevant factors under s.117(4) of the Act. The Tribunal concluded:

   This means that the issue of hardship was not an aspect of the appeal about which the mother was successful and was therefore not part of the matter remitted to the SSAT for hearing.[16]

   [16] The Reasons at para 25

6. The Tribunal referred to what the father had said about hardship:

   if the amount of child support he is required to pay is increased by half the amount of X’s special needs he will be unable to pay this amount and a debt will accrue.[17]

   It concluded that hardship would be caused to him.

   [17] The Reasons at para 27

7. Order 2 of the Orders made by Bender FM did not specify whether, pursuant to s.110F(2)(b) of the Registration and Collection Act, the matter was remitted to the SSAT with or without the hearing of new evidence. Her Honour did not make an order limiting the hearing of new evidence.

8. In its Reasons, the Tribunal relied on its previous findings pursuant to s.117 of the Assessment Act when considering whether its determination was just, equitable and otherwise proper.[18]  

   [18] The Reasons at paras 24, 25, 28 and 35

9. Section 117 of the Assessment Act sets out the matters about which the Court must be satisfied before making a departure order. The Court must apply the three-stage process pursuant to s.117(1). The court must satisfy itself that:

   Where:

   (a)    application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and

   (b)    the court is satisfied:

   (i)     that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and

   (ii)    that it would be:

   (A)    just and equitable as regards the child, the carer entitled to child support and the liable parent; and

   (B)    otherwise proper;

   to make a particular order under this Division;

   the court may make the order.

10. Section 117(4) of the Assessment Act sets out the matters which the Court must consider when determining whether it is satisfied that the particular order is “just and equitable” pursuant to s.117(1)(b)(ii)(A), and s117(5) sets the matters which the Court must consider when determining whether it is satisfied that the particular order is “otherwise proper” pursuant to s.117(1)(b)(ii)(B).

11. As the mother had been successful in the initial appeal, the Tribunal was to rehear only those issues remitted to it by Bender FM. Nevertheless, it was required in making its determination to have regard to relevant s.117 matters for the period between the date of the orders of Bender FM and the date of the re-hearing to ensure that its determination was just, equitable and proper.

12. I refer to the directions made at the pre-trial conference on 27 July 2011 and in particular to direction “(b)”. The mother filed lengthy submissions and gave oral evidence, which largely related to a re-argument of matters about which the Tribunal had made factual findings at the initial hearing.

13. In its original Reasons, the Tribunal noted the hardship to the mother.  This was affirmed by the judgment of Bender FM.  It was again noted by the Tribunal in its second Reasons.  At no stage during the proceedings has it been determined that the mother does not suffer considerable hardship providing for X.  However, the key issue has been and remains the capacity of the father to pay the costs of the special needs of X.  As noted by the Tribunal in its second Reasons:

    …we concluded that Mr Bodrey is not able to pay more child support than the annual rate, fixed by section 65A of the Act, on his income since 24 November 2009.

14. The principal object of the Act is to ensure that children receive a proper level of child support from their parents. One of the particular objects is that the level of such support is to be determined according to their respective ability to provide financial support. It was the finding of the Tribunal that the father was financially unable to meet one half of the special costs of X. As his income increases, he will be able to meet more of those costs.

15. As I have said, the Tribunal was required to consider relevant evidence about the parties’ circumstances since the decision of Bender FM to ensure its determination was just equitable and proper. I note the difficulties faced by tribunals in cases where both parties are unrepresented. Nevertheless, I consider that the Tribunal has made an error of law in failing to consider new evidence about the circumstances of the parties at the date of the re-hearing.

16. Whilst I consider that the Tribunal erred by failing to do that, I am not satisfied that I should exercise the discretion to set aside the decision.

17. There was no evidence about the father’s financial circumstances for the Tribunal to have made a finding that the father’s income or financial circumstances had increased or changed. He has started a business as a (omitted) and was doing (omitted) jobs as he could not obtain employment. He said that he was on a modest income and would not be able to pay one half of the special needs costs.

18. I consider that the new evidence of the mother’s circumstances and  of further hardship that would result to the mother and the child was not evidence sufficient to have resulted in the Tribunal finding otherwise than its determination was just, equitable and proper.

19. I refer to the authority of LDME v JMA (SSAT Appeal).[19] In that case, Halligan FM considered the powers of the Court in respect of ss.110F(1) and (2) of the Registration and Collection Act. His Honour noted:

    [19] Above n 10

    36.    The court “must” hear and determine an appeal from the SSAT, and “may” make such order as it thinks appropriate by reason of its decision (s 110F(1), Registration Act). The orders a court may make on a s 110B appeal include an order affirming or setting aside the decision of the SSAT, or an order remitting the case to be heard and decided again by the SSAT, either with or without the hearing of further evidence, in accordance with the directions of the court (s 110F(2)).

    …

    38. First, the use of the word “may” clearly signifies that the power is discretionary. The fact an error of law by the SSAT is found does not inevitably lead to the decision being set aside. For example, if it is clear there would be no purpose served by having the case heard again, the Court may, in the exercise of its discretion, decline to remit the matter to be heard and determined again, and affirm the decision under appeal (see Clements v Independent Indigenous Advisory Committee, above, at [41]).

20. Pursuant to s.110F, I have discretion to make such orders as I consider appropriate by reason of my decision. For the above reasons, I consider that there would be no purpose to setting aside the determination of the Tribunal and to have another re-hearing of this matter.

21. The above grounds are not made out.

Should the Tribunal have been reconstituted?

1. The mother submitted that she was denied procedural fairness because the Tribunal was not reconstituted for the re-hearing of this matter and that Tribunal failed to give reasons not to remit the hearing to a differently constituted Tribunal.

2. In its Reasons, the Tribunal sets out the history of this matter in relation to the issue of reconstitution:

   8.     On 19 July 2011, the Principal Member directed that the SSAT be constituted for hearing by the members who made the decision to which the appeal related.[20]

   The Tribunal then noted that this decision was made pursuant to “Clause 10 of Schedule 3 of the Social Security (Administration) Act 1999 and subsection 110F of the Child Support (Registration and Collection) Act 1988.”[21]

   [20] The Reasons at para 3

   [21] Ibid

3. The Tribunal continued:

   9.     On 27 July 2011, a conference was held and  the convenor directed the parties to provide submissions on:

   (a)     How the costs of X’s special needs should be addressed in accordance with s.98S of the Act;

   (b)     The proposed determination of adding the costs for X’s special needs to the costs of the child; in particular addressing whether such an approach is just and equitable as defined by sub-section 117(4) of the Act, and otherwise proper as defined in sub-section 117(5) of the Act.

   (c)     On any period of departure as it relates to X’s special needs.

   (d)     On the constitution of the Tribunal for this review, in particular whether any member or members should be disqualified from hearing this matter.

   10.    On 12 August 2011 Ms Crowell asked the Tribunal members to “consider carefully whether is there is a conflict of interest regarding their involvement in this review,” because “the previous decision document contains errors that have resulted from some information being misunderstood or misinterpreted.” These alleged errors concerned the financial circumstances of the parties.

   11.    The Principal Member confirmed her direction that the Tribunal not be reconstituted.[22]

   The Tribunal then noted that “The Principal member cited Comcare v Broadhurst (2011)FCAFC 39 85-95 (Tracey and Flick JJ) and at 29-34 (Downes J)”[23]

   [22] Ibid

   [23] Ibid

4. The mother submitted to the Tribunal that it should be reconstituted.  As noted by the Tribunal:

   10.    On 12 August 2011, Ms Crowell asked the Tribunal members to “consider carefully whether there is a conflict of interest regarding their involvement in this review” because “the previous decision document contains errors that have resulted from some information being misunderstood or misinterpreted”. Those alleged errors concerned the financial circumstances of the parties.[24]

   [24] The Reasons at para 10

5. At the hearing, the Tribunal informed the parties that:

   Ms M has directed, as she is entitled to do under the law that Ms W and I are to hear the matter so, in our view that addresses that.  We have been directed to hear the matter and will proceed to do so.[25]

   [25] The Transcript at 5

6. Section 110F(3) of the Registration and Collection Act provides that, if a Court makes an order remitting a case to heard and decided again by the SSAT:

   (a)    The SSAT need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and

   (b)    Whether or not the SSAT has reconstituted the hearing – the SSAT may, for the purposes of the proceeding, have regard to any record of the proceeding before the SSAT prior to the appeal (including a record of any evidence taken in the proceedings) so long as doing so is not inconsistent with the directions of the Court.

7. Clause 10 of Schedule 3 of the Social Security (Administration) Act 1999 (Cth), which reads as follows:

   10     Constitution of SSAT for each hearing

   (1)    Subject to clause 11, the Principal Member may give written directions as to the member who is, or members who are, to constitute the SSAT for the purposes of:

   (a)    a particular review; or

   (b)    reviews of a particular kind.

   (2)    Without limiting subclause (1), the Principal Member may give a direction under that subclause as to the member who is, or members who are, to constitute the SSAT for the purposes of all reviews, or reviews of a particular kind, that are listed for hearing at a particular place during a particular period or during particular periods.

   (3)    For the purposes of a review, the SSAT is to be constituted by the member or members ascertained in accordance with the directions given under subclause (1).

8. As noted earlier in these Reasons, s.110B of the Registration and Collection Act provides that:

   …A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.

   (emphasis added)

9. As noted by the Tribunal in its Reasons, the decision of whether or not the Tribunal should be reconstituted was made not by the Tribunal itself, but by the Principal Member.

10. The question of whether or not a decision of the Principal Member is capable of appeal pursuant to s.110B of the Registration and Collection Act was considered by Riethmuller FM in Byrne & Graham & Anor (SSAT Appeal)[26]. His Honour referred to equivalent provisions in the Administrative Appeals Tribunal Act 1975 (Cth), and held that the decision of a Principal Member does not constitute a decision of the “SSAT”, and cannot give rise to review pursuant to s.110B.[27] This decision was affirmed by the subsequent cases of McCormack & McCormack & Anor (SSAT Appeal)[28] and Manchester & Manchester and Ors (SSAT Appeal).[29]

    [26] [2010] FMCAfam 1116

    [27] Ibid at 37

    [28] [2011] FMCAfam 963

    [29] [2011] FMCAfam 1215

11. Having regard to these authorities, I am of the view that the decision of the Principal Member that the SSAT not be reconstituted is not a decision of the SSAT capable of review pursuant to s.110B of the Registration and Collection Act. This ground cannot succeed.

12. Even if it were capable of review, I consider that these proceedings were not of a kind in which a reconstituted tribunal was warranted.  The mother submitted that the initial Tribunal expressed views upon facts which were required to be re-determined in the second hearing.  Yet, the factual findings of the Tribunal were not overturned on appeal and did not need to be re-determined.  I do not accept the mother’s submission that she has not been afforded procedural fairness by the Tribunal not being reconstituted

13. This ground is not established.

Did the SSAT err in law by failing to provide the mother with reasons in respect of the issue of reconstitution?

1. The mother submitted that the only advice she received in respect of the reconstitution of the Tribunal was the reference to the authority of Comcare v Broadhurst,[30] a decision of the Full Court of the Federal Court in which the Full Court considered the issue of reconstitution of the Administrative Appeals Tribunal. She submitted that the Tribunal failed to give proper reasons by only referring to that decision and failing to give a clear explanation for its reasons.

   [30] (2011) 192 FCR 497

2. The mother referred to Crowell & Bodrey (SSAT Appeal)[31] in which Bender FM applied the reasoning of Riethmuller FM in PJ & Child Support Registrar.[32]  At 76 Bender FM held that:

   Where the decision of a Tribunal has the effect of seriously impacting on the income of a party and his or her ability to properly maintain and support their child, through an increase or reduction of child support, I am of the view that such person is entitled to receive adequate reasons whereby the basis of that decision is able to be discovered and that there will be circumstances in which inadequate reasons from decisions by the SSAT will give rise to an error in law.

   [31] Above n 1

   [32] Above n 19

3. As noted above, the decision of the Principal Member is not a decision of the Tribunal, and is therefore not capable of review pursuant to the Registration and Collection Act. Even disregarding this, I am of the view that the mother’s appeal does not succeed on this point.

4. At the pre-hearing directions hearing, the parties were directed to provide submissions on whether any member or members of the Tribunal should be disqualified from hearing the matter.  The mother was given the opportunity to be heard on this issue.  The Principal Member had the statutory authority to make the direction about the constitution of the Tribunal and to decide not to reconstitute the Tribunal.

1. The Principal Member cited the authority of Comcare v Broadhurst[33] and referred to the relevant paragraphs of the decision.  Whilst the Principal Member did not give detailed reasons, I consider that the reference to these paragraphs was sufficient for the mother to discover the basis for the direction.

   [33] Ibid

2. This ground is not established.

Procedural fairness - ground seven

1. The mother submitted that an examination of the Transcript evinces the different approach taken by the Tribunal to the parties.  I do not accept this submission.  The Tribunal had before it the mother’s extensive submissions, and was entitled to ask the father whether he wanted to make submissions about relevant matters.  I do not consider that the Tribunal was unfair to the mother by asking the father to respond to her submissions about the issue of hardship.

2. The mother submitted that the Tribunal sought a response from the father and specifically prompted him to make a submission identifying the impact of the decision to pay half the cost of special needs.[34]  Earlier during the hearing, the Tribunal informed him that the mother considers that he has expected to bear the costs of the child equally, because that had been the case for some time, and neither party had lodged an appeal against that aspect of the CSA decision.  The Tribunal asked the father whether he wanted to make any submission about that.[35]  He answered that he has always done what the CSA has told him to do and he was happy to accept the assessment procedure.  The Tribunal repeated its question, and he answered that he was not disputing the amount of the costs, and that he was not necessarily agreeing to pay half – rather, that he accepted the assessment process.[36]  I do not consider that the Tribunal prompted the father as he had already answered this question.

   [34] The Transcript at 22

   [35] Ibid at 6

   [36] Ibid at 13

3. The mother submitted that the SSAT denied her procedural fairness because the Tribunal prevented her from making a submission about hardship. She was told that the Tribunal would need to consider to what degree it would have to consider a change in circumstances.  She made submissions about hardship.[37]  I do not accept the Tribunal prevented her from doing so.

   [37] Ibid at 19 and 20

4. The Tribunal did tell the mother that it would not revisit the issue of the father’s earning capacity because that had been dealt with on appeal.  The Tribunal said:

   The Federal Magistrate did make some findings that we can’t revisit and, specifically matters found by the Federal Magistrate related to [the father’s] income and earning capacity and also to educational expenses for X.[38]

   [38] Ibid at 4

5. Bender FM found that the SSAT had not erred in failing to attach sufficient weight to the evidence in relation to the father’s earning capacity. Her Honour referred to s.117(7B) of the Assessment Act and found that the father had not changed his income position through a deliberate position of his own; that he was actively seeking employment and the change in his circumstances came through no desire to affect his child assessment position. Bender FM also found that ground three of the mother’s appeal in respect of the educational expenses of X has not been made out. I consider that the Tribunal was entitled not to revisit these findings.

6. The mother submitted that throughout the hearing the Tribunal gave explanations to the father about anything that had confused him.  When she expressed confusion, she was asked to move on.[39]  I do not accept this criticism.  The Tribunal asked the mother to move on after it had told her that the issue of the father’s earning capacity had been dealt with on appeal.[40]

   [39] Ibid at 17

   [40] Ibid at 17

7. I do not accept the mother’s submission that the Tribunal did not afford her procedural fairness by not allowing her to make submissions about s. 117(4) matters. She made submissions in respect of ss.117(4)(a),[41] 117(4)(b),[42] 117(4)(d),[43] 117(4)(e),[44] 117(4)(f),[45] 117(4)(g),[46] and s.117(5).[47]

   [41] Ibid at 9

   [42] Ibid at 11 and 12

   [43] Ibid at 15

   [44] Ibid at 18

   [45] Ibid at 18 and 19

   [46] Ibid at 19 and 20

   [47] Ibid at 21

8. Ground seven is not made out.

Did the SSAT misapply case law? – ground four

1. Ground four of the mother’s appeal was that the SSAT “failed to apply or consider relevant case law precedents cited in considering this matter.”

2. The first case cited by the mother was Turner v Chaffey[48], a decision of the SSAT.

   [48] [2010] SSATACSA 12

3. At para 22 of the Reasons, the Tribunal held that:

   Ms Crowell referred to a decision of this Tribunal published on as Turner v Chaffey.  The facts of that case which led the Tribunal to determine an annual rate of child support were very different from those before us in this case, and the case is of no assistance to us in addressing the issues before us.

4. The mother submitted that:

   the facts of this case may be different; the facts of every case are naturally different as they relate to different families who undoubtedly have different circumstances.  It is the principle that all the costs, including public education costs and accommodation costs, were considered in Turner v Chaffey (supra) that is applicable.[49]

   [49] Outline of Case filed by the mother on 10 April 2012

5. The mother’s submissions in respect of Turner v Chaffey[50] are located at page 8 of the Transcript.  The mother submitted:

   In that case, the Tribunal considered all of the normal costs of raising children, and they detailed the costs of meeting the general needs of the children, including the costs of accommodation, sports and hobbies, hairdressing, dental, food, entertainment, fuel, household bills, schools, school fees, computers, school supplies, uniforms, camps, all of that, everything to do with a public school education.  This was all detailed at paragraph 35 of that decision.  These costs amounted to $842.00 a week for two children and they were considered necessary by the Tribunal.  So, you know, from my perspective I guess I find it – well, I just don’t understand why in one case the Tribunal discusses that it includes the costs of a public education and all the general costs that are being excluded from the child support amount… for my daughter…

   [50] Above n 50

6. From the mother’s submissions, and an examination of the transcript, it seems clear that the mother sought to rely on the case of Turner v Chaffey[51] to argue that the costs of X’s education should be included in the sum of $3,648.00 per annum representing her special needs.

   [51] Ibid

7. I note that issue was argued by the mother in her appeal from the initial decision of the SSAT.  At that appeal, one of the mother’s grounds was that:

   …the SSAT erred in law in failing to attach sufficient weight to the evidence in relation to the costs incurred by the appellant for the education of the child and that the SSAT did not give effect to the principle that each parent should consider to the costs of educating the child in the manner expected by the parties.[52]

   [52] Crowell & Bodrey (SSAT appeal), above n 1, at 58

8. The mother was unsuccessful in her appeal on this point.  I refer to paras 127 to 132 of Crowell & Bodrey.[53]  The issue of X’s special needs in relation to education was not referred to the SSAT for re-hearing. The mother has argued her case in relation to the costs of education, and was unsuccessful.  I consider that the Tribunal has not made an error in disregarding the mother’s submissions in respect of Turner v Chaffey.[54]

   [53] Ibid

   [54] Above n 49

9. The second authority referred to by the mother was Hattwheel v James.[55]  This is a decision of the SSAT, in which it found that entertainment costs claimed by the father of $35 per week were “overstated and not strictly necessary”.

   [55] [2010] SSATACSA 1

10. The Tribunal is entitled to consider whether or not two cases are factually similar and to distinguish them.  The issue of what quantum of entertainment costs is reasonable in a particular matter, is a question of fact.

11. I consider that the other authorities referred to by the mother do not add to her argument.  The authority of Hadley& Hadley[56] refers to the principles in the authority of Tasman& Tisdale[57], which I have adopted.  The authority of Clauson & Clauson,[58] in which the Full Court of the Family Court said that child support does not compensate the custodial parent for a loss of career opportunity, was a matter about property and spouse maintenance and does not assist the mother in this appeal.

    [56] [2008] FMCAfam 1252

    [57] Above n 11

    [58] (1995) FLC 92-595

12. I consider that this ground is not made out.

Conclusion

1. For the above reasons, I am not persuaded that the decision should be set aside. I consider that the Appeal should be dismissed.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Baker FM

Date:21 September 2012