CROWLEY & CROWLEY (SSAT APPEAL)
[2012] FMCAfam 311
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROWLEY & CROWLEY (SSAT APPEAL) | [2012] FMCAfam 311 |
| CHILD SUPPORT – Irrelevant facts taken into account – no evidence to support conclusion – remit matter back to SSAT. |
| Child Support (Assessment) Act 1989, ss.3 and 4 Child Support (Regulation & Collection) Act 1988, ss.110B, 103X |
| Tasman & Tisdale [2010] FMCAfam 425 |
| Applicant: | MR CROWLEY |
| Respondent: | MS CROWLEY |
| File Number: | BRC 5457 of 2009 |
| Judgment of: | Coates FM |
| Hearing date: | 4 October 2011 |
| Date of Last Submission: | 4 October 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Shoebridge |
| Solicitors for the Applicant: | Pippa Colman & Associates |
| Solicitors for the First Respondent: | Self represented |
THE COURT ORDERS ON A FINAL BASIS:
That the Appeal from the Decision of the Social Security Appeals Tribunal filed on 12 May 2011 be allowed.
That the matter be remitted to the Social Security Appeals Tribunal for the rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Crowley & Crowley (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 5457 of 2009
| MR CROWLEY |
Applicant
And
| MS CROWLEY |
Respondent
REASONS FOR JUDGMENT
This is an Appeal against a decision of the Social Security Appeals Tribunal (“the Tribunal”) made on 19 April 2011.
There is no dispute over the jurisdiction of the court to hear the matter, although there is dispute over whether a question of law arises under s.110B of the Child Support (Regulation & Collection) Act 1988 (“the Act”), the only ground upon which an appeal against a decision of the Tribunal can be brought.
The appellant had representation but the respondent mother represented herself. She sought that the Appeal be dismissed. The Child Support Registrar was represented but appeared to assist the court.
By way of relevant antecedent history, the appellant received serious injuries in 1992 from which he suffered brain damage.
The parties married in 1995.
Two children were born, [in] 2005 and [in] 2007.
The parties separated in March 2009.
On 7 May 2010 orders for property settlement were made by consent wherein the appellant received $49,000 and the respondent mother received $145,000 and a motor vehicle. She also agreed to be responsible for the private school fees for the children – although not necessarily a property settlement matter.
The appellant retained his ComSuper pension of about $30,000 a year and a total and permanent disability pension from the Department of Veteran Affairs of about $30,000 per annum. The last amount is not taxed.
On 29 June 2010, the respondent mother made an application to the Child Support Agency to review the child support assessment wherein she sought that the appellant would be responsible for school fees and that the appellant’s two incomes, that is the ComSuper pension and the disability pension would be considered for child support purposes.
The respondent mother was not successful with regard to the school fees but the Child Support Agency held that the two incomes would be considered for child support purposes and that for the period of 1 July 2010 to 31 December 2011, the appellant’s adjusted taxable income for child support purposes would be set at $58,612. Until then, the disability pension had not been taken into account as taxable income for administrative assessments for the purposes of child support.
The appellant objected on 24 September 2010.
The objection was not allowed.
On 22 November 2010, the appellant and the respondent mother entered into a Binding Financial Agreement wherein the respondent mother would be responsible for school fees.
The matter was filed in the Tribunal’s jurisdiction on 29 November 2010.
By the decision of the Tribunal delivered on 19 April 2011, the Tribunal determined that the appellant’s adjusted taxable income for the period was the same as set by the Child Support Agency, being $58,612.
As a result of the decision the annual rate of child support to be paid by the appellant was $9,438.
Prior to this time, paragraphs 2 and 3 of the Tribunal’s decision adequately describe the appellant’s position.
“2. The administrative assessment of child support for the period from 14 April 2009 to 30 November 2009 was based on an adjusted taxable income of $28,656 for Mr Crowley (his 2007/08 taxable income) and an adjusted taxable income of $11,976 for Ms Crowley (her 2007/08 taxable income). The assessment was for the payment of $2,364 annually by Mr Crowley.
3. The administrative assessment of child support for the period from 1 December 2009 to 28 February 2011 was based on an adjusted taxable income of $29,820 for Mr Crowley (his 2008/09 taxable income) and an adjusted taxable income of $10,799 for Ms Crowley (her 2008/09 taxable income). The assessment was for the payment of $2,644 annually by Mr Crowley.”
For this appeal, the appellant sought the following order:
“1. That for the period from 1 July 2010 to 31 December 2012, Mr Crowley’s adjusted taxable income for child support be set at $29,820”,
but later abandoned that course, merely seeking for the matter to be remitted to the Tribunal.
It is the appellant’s current living arrangement which is central to the Tribunal’s decision. The appellant lives in a flat owned by his parent’s superannuation fund and he is looked after, mostly, by his mother. His case is that he is saving about $400 a week in order to buy into an RSL care facility in about 10 years time, when it could be anticipated that his mother, now aged 65, may not be able to care for him. The Tribunal took the view that he could buy into such a care facility now, and either live in it or rent it out, relieving him of paying rent to his parents or giving him another income stream. Such would allow for the increase in the assessment of his taxable income for child support purposes and an increase in child support.
It is from this setting that the grounds in the Notice of Appeal can be understood, which stated:
“1. That the learned Tribunal misinformed itself (at paragraph 27 of the Reasons) when it came to the conclusion that there seemed to be no reason that M[r] Crowley could not elect to buy into a RSL facility with the assistance of his family. Specifically:
a. That finding was not available to the Tribunal on the evidence before it.
b. The finding is premised on an incorrect assumption, namely that there is no difference between the superannuation fund of Mr Crowley’s purchasing a unit and renting it out at a commercial rate on the one hand, and members of Mr Crowley’s family having funds to lend to
Mr Crowley on the other hand.
c. That conclusion was not relevant to an assessment of
Mr Crowley’s present needs in any event.
2. That having misinformed itself as set out above, the learned Tribunal erred to the extent that it based any part of its decision upon that finding.”
Turning now to the law, s.110B of the Act is the enabling provision to bring the matter to court. It states:
“110B. 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.”
There is no fixed definition of what becomes a question of law or in practicable terms an error of law which invalidates the decision thus making it capable of being set aside.
In Tasman & Tisdale [2010] FMCAfam 425, Brown FM described what is sometimes called jurisdictional error:
“85. In particular, I reiterate an administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal, in respect of a question of law, if it:
· fails to construe properly the legislative provisions applicable;
· identifies the wrong issues or asks itself the wrong questions;
· ignores relevant material or relies on irrelevant material;
· fails to accord procedural fairness to the party before it;
· 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.
86. In summary, an appeal on a question of law:
· is not a review on the merits or a rehearing;
· as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;
· however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
· in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error.”
It is sometimes difficult to identify an error of law or an error of fact, an error of fact not being justiciable upon an appeal of this type.
That is because the Tribunal makes administrative decisions in support of the objects of the child support acts which are to ensure that children get the proper child support from their parents taking into account the ability and the capacity of the parents and the justness of the decision.
A matter such as this, where the appellant has no possibility of working and has fixed sources of income, only available as a result of the brain injury which he suffered, underlines the need for the Tribunal pursuant to s.103X(3)(b) of the Act to set out the reasons for its decision, that is to set out the findings on any material questions of fact and referring to the evidence or other material upon which the findings of fact are based.
The thrust of the appeal is that paragraphs 27, 28 and 46 of the Tribunal decision display conclusions which were not open to it, which in terms of Tasman & Tidsdale would be identification of wrong issues or ignoring relevant material or relying on irrelevant material or failing to accord procedural fairness or making an erroneous finding of such magnitude that it goes to the jurisdiction that the Tribunal purports to exercise, rendering the decision unreasonable.
It is implicit then from what was said in Tasman & Tidsdale and what was said in other cases that not all errors of law are necessarily of such magnitude that a decision should be overturned.
At this stage, I will reproduce paragraph 27, 28 and 46 so that the submissions can be understood:
“27. In the Tribunal’s view, by paying rent of $450 per week to his parents for the unit in which he is currently living as well putting $400 per week into a superannuation for his future accommodation and care needs, Mr Crowley is in effect paying twice for his accommodation needs.
28. There seems to the Tribunal to be no reason why Mr Crowley could not currently elect to buy into a RSL care facility with the assistance of his family, which was not disputed by Ms Crowley. Mr Crowley could repay this assistance over time from his income streams which are assured. This would seem no different in essence to the current arrangements whereby he is paying his parents a significant amount of rent for a unit his parents bought for him to live in. If Mr Crowley was to buy into RSL care currently, he would only have one ongoing accommodation and care expense, which at current market interest rates would be no more than he is currently paying in rent (even accounting for some additional housekeeping costs).
…
46. As discussed above, the Tribunal does not accept that this additional $400 per week expense should take priority over
Mr Crowley’s duty to support his children if they have a need for support from him in excess of $55 per week.”
In relation to paragraph 27 wherein the Tribunal found that the appellant is in effect paying twice for his accommodation needs and in relation to paragraph 28 wherein the Tribunal found that the appellant had “no reason” why he could not elect to buy into an RSL care facility – errors are alleged on the basis that the Appellant:
a)Is not paying twice for accommodation, he in fact is saving money to buy into an RSL facility in about 10 years time as well as paying market value rent; and
b)He is effectively using the only resource available to him and the only income resource ever likely to be available to him.
As to being able to purchase into an RSL care facility now with the assistance of family – paragraphs 27 and 28 – it was said that he has no prospects of ever earning a living other than from the two income streams he has and he has no assets or borrowing power to secure a loan and that “there was simply not one scintilla of evidence that could have given rise to the suggestion that Mr Crowley could buy into a facility with the assistance of his family”.
It was further said that the appellant’s mother, although asked questions, was not asked if she had the capacity or the willingness to lend sufficient funds to the appellant to allow him to buy into an RSL care facility, so the conclusion that she did not dispute the position cannot be sustained.
It was also said, importantly in my view, that the income and financial resources relevant to the Tribunal hearing are the income and financial resources of the appellant and not his family.
Turning now to paragraph 46 where the Tribunal did not accept that the amount being saved by way of a superannuation fund to create a fund in the future to buy into an RSL facility, and that such should not take priority over the appellant’s duty to support his children, it was submitted that the Tribunal’s duty to balance the obligations in relation to the payment for the children and self-support miscarried.
The Tribunal referred to its duties at paragraph 37 of the decision by stating:
“37. A decision-maker must bear in mind the duties of parents and the objects of the Act, set out in sections 3, 4 and 114. These include:
· The duty of a parent to maintain his or her child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person that the parent has a duty to maintain.
· The level of support should be determined in accordance with the costs of children, and according to the parent’s capacity to provide.
· Parents should share equitably in the support of the child, and the child should have his or her proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents.”
But in assessing whether the Tribunal’s decision miscarried, it is appropriate to repeat ss.3 & 4 of the Child Support (Assessment) Act1989. They state:
“s.3 Duty of parents to maintain their children
(1) The parents of a child have the primary duty to maintain the child.
(2) Without limiting subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself; and
(ii) any other child or another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other person to maintain the child; or
(ii) any entitlement of the child or another person to an income tested pension, allowance or benefit.
s.4 Objects of Act
(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
(a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
(3) It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a) to permit parents to make private arrangements for the financial support of their children; and
(b) to limit interferences with the privacy of persons.”
The Tribunal reasons show it followed the pathway and then referred to the appellant’s position, as well as the position of the children and decided to uphold the departure decision made by the Child Support Agency.
The Tribunal also would not speculate on whether the reduction in the appellant’s present capacity to save for his own future given his medical circumstances was appropriate simply stating that it was not prepared to engage in speculation about possible impacts at an unknown future time. That is not unusual in daily decision making processes by administrative tribunals or even the courts.
Until that point, there was no error at law, the factual decision being made according to the legislation. However, the Tribunal has fallen into error because while it was not prepared to speculate on the reduction of the appellant’s available income to save for his future, it did speculate on his family’s capacity, availability and capability of assisting him to buy into an RSL care facility now.
The only evidence I could see as to how it came to that conclusion was:
a) a statement to the effect that the parents bought a unit for their son which is just not true because it is part of their superannuation, and
b) that he is paying market value rent for the unit, and
c) a comment that the parents had paid $100,000 towards the Appellant’s legal fees.
Without identifying the line of reasoning pursuant to s.103X(3)(b) I hold that the Tribunal has not discharged its statutory duty in identifying what it took into account to determine that the appellant’s parents would, could and will give him that assistance. It was mere speculation.
In human interest terms, this is a very difficult case for any decision-maker because of the particular medical status of the appellant and the fact that there are two children who come under the objects of the child support acts and who have, as the Tribunal pointed out, particular needs. With regard to the personal financial resources of the appellant, the Tribunal’s reasons indicated, as a fact finding decision on the evidence before it, that it did balance the needs of the children and the appellant, in line with the necessary provisions of the child support acts. Although there is complaint about the Tribunal’s decision that the appellant was paying twice for rent, that in itself is simply a conclusion on a set of facts, not open to appeal, even if such characterisation of the appellant’s use of money would not be that decision which the court would make on the same facts. The Tribunal stated its finding on prioritisation of available money, which means it did take into account the competing claims. Such reasoning is understood from the context and perspective that the Tribunal is charged with making administrative decisions with regard to child support, and apart from the requirement to operate within the statutory framework, such decision-making is not on the same basis as judicial decision-making and such decision-making is not to be analysed in a manner “keenly attuned to the perception of error” – the Tasman & Tisdale position based on the authorities. It is on this foundation that an unreasonable decision has to be held to be so unreasonable that such could not be made upon the evidence presented, a situation, in my view, not applicable to this part of the Tribunal’s determination.
However, there was a jurisdictional error of law in that there was no evidence of the appellant’s capacity to buy into an RSL care facility now, based on the speculative position that the appellant’s parents could and would support him for such a purpose. This is where the submission identified at paragraph 34 above is apposite – that the only resources relevant are those which can be identified as being available to the appellant. The error is probably best described as taking irrelevant matters into account or making a decision without evidence, which resulted in the incorrect assumption found in the final decision. It is an error which affects the decision because the decision may have been otherwise different without the error.
While the court was asked to set the appellant’s income, this course was abandoned and in any case, I am not prepared to set the appellant’s income because that is a factual matter for the Tribunal and if I set the appellant’s income, that would prevent the reconsideration of the matter by the Tribunal.
I will remit the matter back to the Tribunal for re-determination –following the usual course before a differently constituted Tribunal – to avoid any perception of unfairness.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 5 April 2012
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