Crowley and Stross and Anor (SSAT Appeal)
[2014] FCCA 1540
•17 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROWLEY & STROSS & ANOR (SSAT APPEAL) | [2014] FCCA 1540 |
| Catchwords: CHILD SUPPORT – SSAT appeal – second appeal – appellant has severe acquired brain injury – whether veterans affairs pension can be considered for departure application – whether hardship properly considered – whether mistake of fact – whether question of law raised. |
| Legislation: Child Support (Assessment) Act 1989, ss.117, 5(1), 43(1), 61(1), 63(1), 35C, 98A, 98C(1)(b) Child Support (Registration and Collection) Act 1988, ss.11B0, 88, 103X Superannuation Industry (Supervision) Regulations 1994, Reg 6.01 |
| LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132 Pozzolanic Enterprises Pty Ltd [1993] FCA 322 |
| Applicant: | MR CROWLEY |
| First Respondent: | MS STROSS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 5457 of 2009 |
| Judgment of: | Judge Coates |
| Hearing date: | 9 April 2013 |
| Date of Last Submission: | 9 April 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 17 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Burridge |
| Solicitors for the Applicant: | Pippa Coleman & Associates |
| Solicitors for the First Respondent: Solicitors for the Respondent: | In Person Australian Government Solicitor |
ORDERS
That the solicitors for the Applicant submit to the court draft Orders to reflect the reasons for judgment by no later than 4.00 pm on 24 July 2014.
IT IS NOTED that publication of this judgment under the pseudonym Crowley & Stross & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5457 of 2009
| MR CROWLEY |
Applicant
And
| MS STROSS |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
The appellant father, who is disabled due to injuries suffered in a [omitted] accident, appeals against a decision of the Social Security Appeals Tribunal (“the SSAT” or “the tribunal”) made on 8 October 2012.
He seeks that the decision be altered, so that his adjusted taxable income for child support purposes for the period 1 July 2010 to 30 June 2013, be set at $30,499.
The child support is for his two daughters, aged 7 and 5.
The appellant’s only earnings source is by way of two pensions, payable for his military service and injuries.
The appeal is brought pursuant to s.110B of the Child Support (Registration and Collection) Act 1989.
The section states: “A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law”.
Based on the tribunal’s decision to take into account the two income sources for departure when one is excluded from administrative assessment, the issues raised as questions of law under the child support acts pertain to the appellant’s plan to eventually move to a retirement facility which he cannot save for because of the decision, whether the tribunal considered hardship within terms of the child support acts and whether both of his pensions may to taken into account for the departure from administrative assessment of child support.
The relevant background is as follows:
a)The appellant is aged 39 and has been out of the workforce since he suffered brain injury in a motor vehicle accident at the age of 20.
b)The [omitted] accident occurred in 1992;
c)The mother is aged 40 and worked for [omitted] but has not worked since the youngest child was born;
d)The parents married in 1995;
e)The children were born [omitted] 2005 and [omitted] 2007;
f)The parents separated around March or April 2009;
Since about December 2009, the children have been in the full time care of the mother.
The appellant served in the Royal Australian Air Force and receives pensions payable after becoming disabled:
a)One being from his superannuation provider Military Super, which is taxable, and
b)The other being paid by the Department of Veterans’ Affairs under the Veterans’ Entitlement Act 1986 (“the DVA pension or benefit”), which is not taxable.
By way of income the mother receives Centrelink benefits.
The history of the matter before the court now is that:
a)A departure decision from administrative assessment of child support was made on 25 August 2010, setting the appellant’s adjusted taxable income at $58,612 (adding the two benefits together);
b)Following procedures laid down in the child support legislation, the matter went to the SSAT, which produced its decision on 19 April 2011 which also held that both payments are assessable for the purposes of departure from administrative assessment;
c)An appeal against that decision was upheld, remitting the matter back to the tribunal (although the questions then were different from the questions now before the court);
d)The new decision was handed down on 8 October 2012;
e)The reasons in the new decision from paragraphs 4 to 13, properly in my view, refer to the historical decision-making within the Child Support Agency which led to the first appeal, resulting in the matter being remitted back for determination; and
f)The 8 October 2012 decision by a differently constituted tribunal set the appellant’s income at $58,341 for the period 1 July 2010 to 31 December 2011 and at $62,720 for the period 1 January 2012 to 30 June 2013. Again, the tribunal counted both payments for the purposes of child support.
It is that decision which is appealed from now.
By way of contextual background, the current circumstances of the parties are:
a)The appellant is looked after by his parents, particularly his mother who exercises powers of attorney for him. His case is that such care will cease at some stage, possibly in about 10 years, and it is essential that he saves to buy into to an RSL retirement facility in the future. For that he will require about $310,000;
b)That his parents will probably not be in a position to look after him is reflected in their ages, his mother being, at the time of the decision, aged 65 and his father being aged 68;
c)To save for such facility, the appellant set up a superannuation fund in 2010 with Sunsuper, paying $400 a week, the account now accumulating about $43,000; and
d)The respondent mother cares full-time for the two children of the relationship. She relies on Centrelink payments.
There are three grounds of appeal before the court, being:
“1.That the learned Tribunal erred in law in holding, at paragraph 74 of its Reasons, that it would not be necessary for Mr Crowley to move into a retirement village.
Particulars
(a) The conclusion arrived at by the Tribunal was not open to it in the face of the evidence of Ms C, and Dr M.
2. That the learned Tribunal erred in law in holding, at paragraph 84 of its Reasons, that Mr Crowley could pay off the arrears that its decision will create without suffering hardship:
Particulars
(a) The Tribunal did not quantify the arrears that would be caused by its decision; and
(b) The Tribunal could not, therefore, have arrived at the conclusion that it did, namely that there would be no hardship, by reference to any objective evidence.
3. The Tribunal erred in law in holding at paragraph 85 of its Reasons that the Veterans Affairs Pension received by
Mr Crowley can be taken into account as income for child support purposes.
Particulars
(a) “adjusted taxable income” is defined in s.5(1) and s.43(1) of the Child Support (Assessment) Act; and
(b) That definition does not include the Veterans Affairs Pension being paid to Mr Crowley; and
(c) The Tribunal has failed to give any, or any adequate reasons why it would take into account income specifically excluded by the relevant legislation.”
The considerations of such appeals have been addressed in a number of cases, although my references following do not and could not state the whole of the considerations given to such appeals.
In LDME v JMA (SSAT Appeal) [2007] 38 FamLR 132, Halligan FM set out a useful summary:
“19. The Explanatory Memorandum accompanying the Bill that became the New Formula Act says of s.110B:
I.“Section 110B deals with appeals from decisions of the SSAT. It provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the SSAT in that proceeding. This is consistent with how matters are currently appealed from the AAT to a court. The SSAT and AAT are tribunals which consider the merits of a case, whereas a court usually only considers matters which raise a question of law.”
20. The provision creating a right of appeal, on a question of law, from the Administrative Appeals Tribunal (the AAT) is s.44(1), Administrative Appeals Tribunal Act 1975 (the AAT Act), which is in the following terms:
I.“(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.”
21. Section 110B and s.44(1) are identical provisions apart from the references to the tribunals whose decisions may be appealed and the court to which the appeal lies. And other provisions of Division 3, Part VII of the Registration Act are based on provisions in relation to appeals, on a question of law, from the AAT, including provisions as to the court’s powers on an appeal (cf. s.110F, Registration Act and s.44(4) and (5), AAT Act) and the limited power to make findings of fact on an appeal (cf. s.110G, and s.44(7), (8) and (9)). Thus, in determining the meaning and operation of provisions of Division 3, decisions as to the meaning and operation of equivalent provisions of s.44 will provide valuable guidance.”
Federal Magistrate Jarrett referred to that case in Jordan v Verne (SSAT Appeal) [2012] FMCAfam 21 and stated that the consistent decisions of this court have been informed by the approach “adopted when dealing with appeals pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act): for example LDME & JMA (SSAT Appeal) (above), Tasman & Tisdall [2008] FMCAfam 126, Byrne & Graham (SSAT Appeal) [2010] FMCAfam 1116; Travers & Gibbon (SSAT Appeal) [2011] FMCAfam 543”.
At paragraph 7 he then said:
“7. As to the approach to be adopted on an appeal brought pursuant to s 44(1) of the AAT Act, the principles have recently been summarised by the Full Court of the Federal Court in Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 (Rana). In that case Kenny, Stone and Logan JJ said (at [11]-[15]):
I.[11] The right of appeal conferred by s 44 of the AAT Act is a right to appeal to this court “on a question of law”. The question of law is, as was emphasised by Gummow J when a judge of this court, the very subject matter of the appeal: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 at 178. Recognising this, Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 highlighted the importance of stating a question of law in the notice of appeal. This importance has been repeatedly emphasised in recent years by the Full Court in cases such as Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 ; [2003] FCAFC 232 at [12]–[18] (Birdseye); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 ; 202 ALR 450 ; [2003] FCAFC 244 at [41]–[51] and Comcare v Etheridge (2006) 149 FCR 522 ; 227 ALR 75 ; [2006] FCAFC 27 at [11]–[17]. The need for a notice of appeal to specify a question of law is not just a matter of pleading. In the absence of a question of law there is no subject matter for the appeal and the court has no jurisdiction to entertain the proceeding.
II.[12] The respondent Repatriation Commission relied upon this line of authority as offering one reason why the appeal against the judgment below should be dismissed.
[13]The learned primary judge was plainly alive to the importance of the requirement that there be a question of law: see in particular para 41 of his Honour’s reasons for judgment and the reference to Birdseye. At the time, O 53 r 3(2) of the (now former) Federal Court Rules 1979 (Cth) required that a notice of appeal separately specify the question of law raised by the appeal and the grounds relied upon in support of the order sought on the appeal. In Birdseye at [18] Branson and Stone JJ drew attention to this rule and to a resultant expectation that the grounds specified in a notice should form a link between the specified questions of law and the orders sought. In effect, the grounds should detail why it is that the nominated questions of law should be answered in a way which entitles the applicant to the orders sought.
III.[14] The learned primary judge scrutinised the grounds which Mr Rana had specified in his notice of appeal to the end of determining whether there was any such link and also to the end of determining whether, read as a whole, a question of law was in substance revealed by the notice…
IV.[15] The end result of his Honour’s scrutiny of these grounds were conclusions that M r Rana’s appeal from the Tribunal raised no question of law but was, instead, an impermissible endeavour to have the court to review on the merits the question of his pension entitlement. In so concluding, his Honour stated (at [88]–[89]), “This was a case quintessentially which had to be decided upon its facts. The Deputy President addressed all of the relevant evidence and decided the case factually adversely to the applicant …”
Jarrett FM also stated that he agreed with Halligan FM in LDME v JMA where he quoted from that case at paragraph 8:
“8. Respectfully, I agree with Halligan FM in LDME & JMA (SSAT Appeal) (above) where his Honour said:
I.[30] Notwithstanding this ideal, in my view this court must have regard to the statutory requirement binding it to “proceed without undue formality” and to “endeavour to ensure that the proceedings are not protracted” (s 42, Federal Magistrates Act 1999), reflecting the objects of the Federal Magistrates court Act (see especially s 3(2)(a) and (b)). The eschewing of undue formality is particularly significant in matters, such as child support matters, where unrepresented litigants are a significant phenomenon. The lack of representation of a s 44 appellant has been recognised in this court as justifying some amelioration of the usually strict requirement in such appeals for the question of law to be stated in the Notice of Appeal (Burgess v Centrelink [2006] FMCA 1952 at [5] and [6]).
II.[31] I am therefore of the view that an unduly legalistic or pedantic approach should not be taken in analysing the grounds of appeal stated in the Notice of Appeal. Especially with unrepresented litigants, the court must strive to identify from the case presented whether a question of law arises that may justify the orders sought and strive, consistent with the requirements of procedural fairness, to deal with the substance of the case.
III.[32] Of even greater significance in my view is the guidance the above mentioned cases provide to the court in deciding a section 110B appeal. They illustrate the analysis and process of reasoning required in deciding such an appeal.
IV.[33] Thus, of relevance to s 110B appeals in my view are cases on s 44 appeals in relation to:
what is a “question of law” (for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd (1996) 196 CLR 389 at 394–399; Repatriation Commission v Hill [2002] FCAFC 192 at [59], (2002) 69 ALD 581; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [6]–[8], (2003) 131 FCR 28 , 37 AAR 309); Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 at [45] and [46] per Branson J, (2003) 202 ALR 450 , 47 ACSR 649; Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50])
the centrality to the appeal on a question of law and its impact on the nature of the proceedings (for example, Birdseye above at [10] to [22] per Branson and Stone JJ, (2003) 76 ALD 321 , 38 AAR 55: Saxby Bridge, above, at [107] per Jacobsen and Bennett JJ; Comcare v Etheridge above at [13] and [14] per Branson J, with whom Spender and Nicholson JJ agreed; Brown v Repatriation Commission [2006] FCA 914 at [7]);
the necessary connection between the question of law raised on an appeal and the relief sought (for example, Birdseye, above, at [18] per Branson and Stone JJ; Saxby Bridge, above, at [47] per Branson J).”
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said:
“86. As I have explained, findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a "decision" or "conduct". Findings of fact, including inferences, may be reviewed under the ADJR Act for error of law (s.5(1)(f)) and on the ground "that there was no evidence or other material to justify the making of the decision" (s.5(1)(h)). It is not necessary to consider the content of the ground in s.5(1)(j), "that the decision was otherwise contrary to law.
87. The question whether there is any evidence of a particular fact is a question of law: McPhee v. S. Bennett Ltd. (1934) 52 WN(N.S.W.) 8, at p 9; The Australian Gas Light Co. v. The Valuer-General (1940) 40 SR(NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light, at pp 137-138; Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v. Broken Hill South Ltd. [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: Sinclair v. Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473, at pp 481, 483.
88. But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:
"Even if the reasoning whereby the Court reached its
conclusion of fact were demonstrably unsound, this would not
amount to an error of law on the face of the record. To
establish some faulty (e.g. illogical) inference of fact
would not disclose an error of law."
89. Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
90. On the other hand, there are statements in the English cases which support a "no sufficient evidence" test in the context of judicial review of findings of fact: see, for example, Reg. v. Governor of Brixton Prison; Ex parte Armah (1968) AC 192, at pp 235, 257; but cf. pp 241, 263. It remains to be seen whether these statements convey any more than a "no probative evidence" test. So far no occasion has arisen to determine whether this is the case and, if so, whether the statements are to be seen as expressing what is or should be the law of Australia on the topic. There are also statements in the English cases which suggest that findings and inferences are reviewable for error of law on the ground that they could not be reasonably made on the evidence or reasonably drawn from the primary facts: Edwards (Inspector of Taxes) v. Bairstow [1955] UKHL 3; (1956) AC 14, at p 36; Cooper v. Stubbs (1925) 2 KB 753, at p 772; British Launderers' Research Association v. Borough of Hendon Rating Authority (1949) 1 KB 462, at pp 471-472; Ashbridge Investments Ltd. v. Minister of Housing and Local Government (1965) 1 WLR 1320, at p 1326; (1965) 3 All ER 371, at p 374. Further, in Mahon v. Air New Zealand [1983] UKPC 29; (1984) AC 808, the Judicial Committee stated (at p 821) that natural justice requires that "the decision to make (a) finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory". These statements may be traced back to the observations of Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 456, at p 488; see also Minister for Immigration and Ethnic Affairs v. Pochi [1980] FCA 85; (1980) 44 FLR 41, per Deane J. at pp 67-68; [1980] FCA 85; 31 ALR 666, at pp 689-690 (an appeal from a decision of the Administrative Appeals Tribunal under the AAT Act). The approach adopted in these cases has not so far been accepted by this Court.”
The first ground of appeal is that the SSAT erred in law by finding that it would not be necessary for the appellant to move into a retirement village, the question of law said to be raised being that such a conclusion was not open on the face of the evidence of the appellant’s mother and Dr M.
The finding is stated at paragraph 74 of the decision.
On this ground the appellant’s case is that the tribunal did not consider, within the framework of s.117(2)(a)(iii) of the Child Support (Assessment) Act 1989, what are necessary commitments for a parent’s own support.
The section lays out considerations for departing from an administrative assessment, referring to whether in “the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of…(iii) commitments of the parent to enable the parent to support…himself or herself…”.
The question of law raised is framed in alternatives – whether the tribunal failed to afford the appellant procedural fairness, whether it proceeded on a wrong principle, whether it reached conclusions inconsistent with the evidence or failed to reconcile or properly address the evidence.
The appellant’s case is that while the decision finds that the appellant has suffered a very severe traumatic brain injury which results in cognitive impairment, and that he will need to provide for his future needs and support from his current earnings, that it then reached wrong conclusions beyond a mere mistake of fact.
The tribunal decision recorded Dr M’s opinion that the RSL facility would provide suitable accommodation, but then found that making provision for the facility was not a necessary commitment for his support.
At paragraph 61 of the decision, the tribunal identifies what it states is the critical question – whether saving to enter the RSL centre is a commitment necessary to enable him to support himself. The decision states: “If it is not, Mr Crowley’s duty to maintain his children must take priority: section 3(2) of the Act”.
The Tribunal then referred to the decision of In the marriage ofGylseman (1991) 15 FamLR 219 and the following passage: “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 maintain himself at a reasonable level. It is clear from the objects of the Assessment Act that there is an intention to reverse what was seen to be the undesirable lack of emphasis upon the former of those commitments in the past, but it was not intended to completely reverse that situation. It is a question of reasonable balance in the individual case.”
The tribunal then found that saving for the RSL facility was not a necessary commitment for the appellant. This is despite stating it accepted Dr M’s evidence of the care the appellant will require, referring to that evidence at paragraph 69 of the decision: “…but it would depend on how Mr Crowley progressed on the program. Support of up to 20 hours per week might be required. If there is no increase in living skills through the occupational therapy program, there could be a need for four hours of case management per month and six to eight hours of attendant care per day”.
The submissions by the Child Support Registrar, the second respondent, and accepted by the first respondent, the mother, are that the decision is stating findings of fact and decisions of fact are not reviewable and seeks to disturb factual finding, see Waterford and the Commonwealth (1987) 163 CLR 54.
That is true.
Even if the tribunal decision wrongly concluded the outcome on the evidence given, that merely raises a question of factual mistake and as the second respondent refers to in Comcare v Moon [2003] FCA 569-33, “…Care must be taken to convert questions of fact into questions of law. The Tribunal, moreover, does not commit an error of law merely because it finds facts wrongly or on a doubtful basis or because it adopts unsound reasoning. … If there is any evidence rationally and legally capable of supporting the finding of fact, then the finding of fact does not involve an error of law.”
But the case is not so simple, and I do not accept the submission that the appellant is attempting to amend the first ground of appeal relating to his own support, under ss.117(2)(a)(iii), by raising four sub-grounds of appeal being:
a)The tribunal failed to afford the applicant procedural fairness by receipt of evidence after the hearing;
b)Proceeded on a wrong principal;
c)Reached conclusions against, and inconsistent with, the evidence and the weight of the evidence; and
d)Failed to reconcile or properly address various aspects in relation to the current and future needs and commitments of the appellant.
This is merely a further particularisation of the ground stated for the appeal.
The first respondent 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.
That is not actually the case, if other relevant issues need to be considered.
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.
However, in my view the tribunal went outside the proper evidence – even given it is not bound by evidential rules - in applying the law to the facts, in order to reach its findings.
The tribunal contacted RSL Care to determine whether the level of services would be as extensive as suggested by the appellant.
Undoubtedly, while the tribunal does not have to have regard to the rules of evidence, a question of law is raised when it appears that the decision was made upon a wrong principle.
This takes non-reviewability on a finding of fact into that field which does allow for such decisions to be set aside.
Paragraphs 71 to 77 of the decision addresses what may or may not occur in relation to care for Mr Crowley 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”.
The mistake is said to have occurred in relation to Dr M’s evidence. While Dr M’s evidence is based on medical prediction - the fact that the disabled appellant will have to provide both accommodation and care out of his earnings is not challenged and could not be challenged on the evidence. This is a crucial issue in my view, because the decision is said to go outside the evidence, not merely to mistake it.
I accept that.
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 appellant 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.
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”.
In my view the tribunal has confused the current care arrangements provided by the appellant’s mother with the situation which the appellant inevitably faces as he grows older, that he will not be capable of relying on his current parental support.
Determining commitments is not a consideration of current commitments, but all commitments necessary, especially so when a person is disabled.
It was also submitted that the question of law raised was that the tribunal failed to afford the appellant procedural fairness by receiving evidence from the RSL care facility after the hearing, that it proceeded upon a wrong principal and that it reached conclusions against and inconsistent with the evidence and the weight of the evidence. All of these elements of the mistake come into play here.
It cannot be the case that in making a finding under one of the grounds only, as is put forward by the second respondent, 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.
This part of the decision then is unsustainable for having applied a wrong principle, being that all relevant facts were not considered within the framework of the legislation, and the decision ought be set aside on that ground.
The second ground of appeal relates to a question of whether there was evidence for that part of the decision wherein the tribunal backdated the appellant’s income to include his Veteran’s Affairs pension to 1 July 2010.
This – and a stay order –created arrears.
There was no calculation of the arrears stated in the decision at paragraph 84.
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 appellant would suffer no hardship when he began paying those arrears.
It is necessary to examine just what led to the statement at paragraph 84 that the appellant would incur arrears. The examination begins from paragraph 82 of the decision, which states:
“82. The tribunal has calculated that after payment of various necessary expenses, Mr Crowley 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 Mr Crowley 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
Mr Crowley with $283 per week. In these circumstances, the Tribunal is satisfied that payment of child support on the basis of Mr Crowley’s full income will not cause him hardship.
83. In her change of assessment application, Ms Stross sought an increase to the annual rate with effect from 14 April 2009. At the hearing, Ms Stross did not submit that the rate should be set at any particular figure, but rather that
Mr Crowley’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 [Ms Stross] to apply earlier, but she did not do so.
84. Mr Crowley 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 Sunsuper account, he will be able to pay off the arrears over time without suffering hardship.”
The arrears then are calculable because they arose from the time the appellant’s rates of payment of child support were increased.
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.
That question is whether the tribunal has considered hardship for the appellant, as it is required to do by the Act.
In the appellant’s case it was said that the question arises because the tribunal failed to consider the practical effect of its decision, by its treatment of his (future) commitments for self-support.
I was referred to figures which were said to be wrong by the appellant. I was referred to figures said to take into account the commitments by the second respondent.
In my view, it would be difficult to conclude that merely using wrong figures is anything but a mistake of fact, and I remind the parties, such cannot be challenged, on either case.
My first supposition was that there was no substance in this ground of appeal.
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.
The statement by the tribunal is its conclusion in paragraph 84, that: “If he cannot access the funds in the Sunsuper account, he will be able to pay off the arrears over time without suffering hardship”.
The tribunal is clearly alert to the fact that the arrears have to be paid, and its resolution is for the appellant to access his superannuation funds – the very funds he is to use for his future accommodation, or pay the arrears off over time.
This is a curious statement made in paragraph 84, because should the appellant be able to access his superannuation fund, it will be immediately reduced by the amount of the arrears and the effect on his retirement plan is then unknown, and the same unknown effect will result by paying arrears over time, because he will not have the same capacity to set aside funds for his future care and living requirements.
So while the arrears are calculable, the tribunal did not calculate them to determine the effect on the appellant’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 appellant housed in a boarding house, which must be a possibility if he cannot make provision for a retirement facility.
The other assumed issue in that statement is that to access the superannuation itself, the appellant would have to apply under the Superannuation Industry (Supervision) Regulations 1994, Reg.6.01, for early withdrawal.
The superannuation regulation has to be understood. It states:
“Reg 6.01. (5) For the purposes of Schedule 1, a person is taken to be in sever financial hardship of:
I.The trustee of a superannuation entity is satisfied:
Based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments, that:
A. The person has received Commonwealth income support payments for a continuous period of 26 weeks; and
B. The person was in receipt of payments of that kind on the date of the written evidence; and
That the person is unable to meet reasonable and immediate family living expenses; or
II.The person has reached the age that is the person’s preservation age plus 39 weeks and the trustee of a superannuation entity is satisfied:
Based on written evidence provided by at least one Commonwealth department or agency responsible for administering a class of Commonwealth income support payments--that the person received Commonwealth income support payments for a cumulative period of 39 weeks after the person reached the person’s preservation age; and
That the person was not gainfully employed on a full-time, or part-time, basis on the date of the application for cashing or his or her preserved benefits, or restricted non-preserved benefits, in the entity.
That the person was not gainfully employed on a full-time, or part-time, basis on the date of the application for cashing of his or her preserved benefits, or restricted non-preserved benefits, in the entity.
(5A) The written evidence provided for by paragraph (5)(a) is of no effect if it is dated more than 21 days before the date of the person’s application to the trustee for cashing of his or her preserved benefits or restricted non-preserved benefits.”
This regulation was not referred to in either the decision or in submission by the parties, but it appears to me that given the statement at paragraph 84 of the decision, the tribunal could not ignore the practical result of its decision – to force the appellant to rely on accessing a superannuation fund to pay any arrears in child support – without addressing the issue of hardship, a legal requirement governing its decision-making process.
Addressing the issue of hardship is a requirement of the Act.
Addressing it means to consider it.
Consideration means calling the issue before the mind and taking into account the facts going to the issue. A mere reference to the word hardship in this case does not allow me to infer that the matter has actually been determined. Such consideration does not interfere with s.88 of the Child Support (Registration and Collection) Act 1988, which sets out the tribunal’s objective, wherein it “must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick”.
The mere reference to accessing the appellant’s superannuation does not consider an important component of its own decision, that the appellant may access his superannuation account.
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.
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.
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 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.
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 appellant could not meet his “immediate….living expenses”.
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.
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.
As to the component of the decision that the appellant 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.
At paragraph 47 of the decision the tribunal recognised that the appellant’s only substantial asset was the $43,000 in his Sunsuper 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.
On the reasoning applied, the tribunal has not determined the hardship factors affecting the appellant according to law, and thus a question of law is raised.
I need to refer to the submissions put forward by the parties.
The appellant 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).
The second respondent 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.
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 appellant is a person who cannot gain better income sources because of an acquired (severe) brain injury, the decision ought be set aside.
The third ground of appeal is whether the Assessment Act pursuant to ss.5(1) & 43(1) allows as a matter of law for the Department of Veterans Affairs pension to be taken into account as income for child support purposes.
The scheme of the Act allows for an administrative assessment of child support under Part 5, and for a departure from administrative assessment, under Part 6A.
An administrative assessment of child support is made upon the application of formulas to determine what child support is to be paid by a parent.
I am not going to refer to the formulas and all of their details, but I need to refer to certain terms as used for an administrative assessment for some grasp of the process. The words I refer to in italics are words or phrases used in the Act.
Child support is defined in s.5 as being the financial support for a child under the Act.
It is calculated for a period.
Taken into account is the particular parent’s child support income which is calculated from that parent’s adjusted taxable income minus self-support amounts.
The adjusted taxable income has definitions as stated in s.43 and ss.61(1) and 63(1).
Section 43 works out the adjusted taxable income taking into account components such as the taxable income, the last relevant year of income, the child support period, foreign income, investment losses and reportable superannuation contributions.
I am only referring generally to the definitions, not the mechanics of working out the actual figures, because I do not need to for the purposes of this decision.
The interpretations in s.5 also refers and gives meaning to the “tax free pension or benefit” payments which are taken into account in determining an administrative assessment of child support.
The section states: “tax free pension or benefit” means any of the following pensions or benefits:
a)“A disability support pension under Part 2.3 of the Social Security Act 1991 ;
b)A wife pension under Part 2.4 of the Social Security Act 1991;
c)A carer payment under Part 2.5 of the Social Security Act 1991;
d)An invalidity service pension under Division 4 of Part III of the Veterans' Entitlements Act 1986;
e)A partner service pension under Division 5 of Part III of the Veterans' Entitlements Act 1986;
f)Income support supplement under Part IIIA of the Veterans' Entitlements Act 1986;
g)Defence Force Income Support Allowance under Part VIIAB of the Veterans' Entitlements Act 1986;
to the extent to which the payment:
h)Is exempt from income tax; and
i)Is not a payment by way of bereavement payment, pharmaceutical allowance, rent assistance, language, literacy and numeracy supplement or remote area allowance; and
j)If the payment is a payment under the Social Security Act 1991 --does not include tax-exempt pension supplement (within the meaning of subsection 20A(6) of that Act); and
k)If the payment is a payment under the Veterans' Entitlements Act 1986 --does not include tax-exempt pension supplement (within the meaning of subsection 5GA(5) of that Act).”
The tribunal was aware of what an administrative assessment could and could not take into account, because at paragraph 85 of its decision was the statement:
“85. The tribunal notes that certain tax free pensions and benefits have been taken into account since 1 July 2008 as a result of legislative amendments. These do not include the type of DVA payments received by Mr Crowley. However the fact that parliament did not include such payments does not, in the tribunal’s view, mean that they cannot be taken into account in a change of assessment when such a course would be just and equitable.”
The term change of assessment in that paragraph is a reference to a departure application.
In applying the formulas and legislated considerations the second respondent agrees that an administrative assessment cannot take into account the DVA benefit, and I have referred to what may be considered to give background knowledge of how administrative assessment is made.
However the two cases before the court differ as to whether the DVA benefit can be taken into account for a departure decision, which is made under Part 6A.
Despite all of the submissions, the starting point is to interpret the statute, and numerous authorities give the court that direction.
The second respondent refers me to s.35C, which allows for the administrative assessment if there is not a departure decision.
The submission is that the departure provisions and Part 6A have very different considerations from administrative assessment, being that income, otherwise not defined by the Act, can generally be taken into account in determining whether to depart from an administrative assessment.
Such then would have to be apparent in the wording of Part 6A provisions.
Although I was not referred to s.98A, which is the simplified outline of Part 6A, the wording cannot be ignored. The opening point made is in these terms: “The Registrar can make a determination under this Part to depart from the provisions of this Act relating to the administrative assessment of child support for a child.”
The wording is decisive because the appellant submitted that the exclusion of the DVA pension from administrative assessment also meant that it would be excluded from a departure determination, and further, because of the definitions in s.5 and s.43, the DVA pension cannot be considered income, property or a financial resource.
There were many submissions by the parties as to what meanings ought be ascribed to words like income or resources – words not defined in the Act – but essentially that arguments diverted to extraneous matters because the Act, at s.98A, clearly states the Registrar may depart from the provisions of the Act.
The section is in clear and unambiguous terms and states the power which may be exercised.
It is then that the Act then states the parameters of such decision-making.
Such decision-making is not at large, and s.98C(1)(b) imposes a strict process. It states
“Section 98C(1)(b). Matters as to which Registrar must be satisfied before making determination.
(1) Subject to this part if:
…. (b) The Registrar is satisfied:
i.That one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
ii.That it would be:
A. Just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
B. Otherwise proper;
To make a particular determination “
The grounds at s.117 are:
“Section 117.
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
i.the duty of the parent to maintain any other child or another person; or
ii.special needs of any other child or another person that the parent has a duty to maintain; or
iii.commitments of the parent necessary to enable the parent to support:
A.himself or herself; or
B.any other child or another person that the parent has a duty to maintain; or
iv.high costs involved in enabling a parentto spend time with, or communicate with, any other child or another person that theparent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
i.because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
ia. because of special needs of the child; or
ib. because of high child care costs in relation to the child; or
ii.because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)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:
i.because of the income, earning capacity, property and financial resources of the child; or
ia. because of the income, property and financial resources of either parent; or
ib. because of the earning capacity of either parent; or
ii.because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, theFamily Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent's adjustedtaxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
It can be seen from the wording that the terms income, property and resources are used and as I stated there is no definition. The second respondent submitted that words ought be given their ordinary meaning, particularly the word income, and referred me to Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322, at 25: “…when a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words. Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact”. That is a restatement of applying to words their ordinary meaning which is accepted as good law.
Of particular importance in this case is whether s.117(2)(c) considerations of the decision have been made out, although the submission of the second respondent is that only one of the grounds has to be made out.
The second respondent referred me to s.103X of the Child Support (Registration and Collection) Act 1988 whereby the tribunal is required to set out its reasons, the findings on material questions of fact and reference to the evidence on which the findings of fact are based.
This requirement does not mean that the decisions have to be stated with all particulars, and I was referred to paragraph 24 of the decision where the tribunal refers to the special circumstances of the case – that the appellant has a sizable component of his overall income which did not form part of his adjusted taxable income.
In my view, despite the submissions to the contrary and the reference to the second reading speech which widened the net for some pensions and payments to be taken into account for an administrative assessment, but not this pension, the wording of both s.98C and the various words in s.177 do not act as a bar to taking into account the DVA pension for the purposes of making a departure decision.
If this particular pension, or any particular pension or payment was to be excluded, then such would have to be clearly stated to limit s.98A which allows the decision-maker “…to depart from the provisions of this Act relating to administrative assessment of child support…” I need to emphasise again, the words “to depart from the provisions of this Act” are crucial, because they must mean, and can only mean, that the provisions otherwise stated in the Act may be departed from. Any limitation then needs to be found in the following sections I have referred to. I can find no limitation in those sections.
However, that is not an end to the matter.
I referred to paragraph 24 of the decision, and the tribunal reference to the special circumstances of the case, a requirement under s.117.
The tribunal referred to the special circumstances as being that the appellant received a sizeable component of his income by way of a payment which did not form part of his taxable income.
But the words refer to the special circumstances of the case, and that is to the relevant facts as a whole.
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 appellant 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…”.
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 appellant’s medical condition itself is a special circumstance of the case. This is an error beyond mistake of fact.
As such a question of law has been successfully raised and the decision should be set aside on that ground.
This matter has now returned to the tribunal twice.
I now intend exercising my discretion to make the determination.
That the tribunal did not take into account the appellant’s medical condition which prevents him from both earning more income and on the evidence which is accepted, that he will need to make provision for his future, I intend excluding the DVA pension and will set his taxable income for child support purposes, for the relevant period, at $30,499.
The solicitors will prepare the relevant orders according to this decision.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 17 July 2014
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