Dale & Dale & Anor (SSAT Appeal)
[2012] FMCAfam 975
•12 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DALE & DALE & ANOR (SSAT APPEAL) | [2012] FMCAfam 975 |
| CHILD SUPPORT – Appeal from decision of SSAT – no finding of error of law – application dismissed. |
| Child Support (Registration and Collection) Act 1988, ss.110F, 110B |
| Farrens & Farrens (2010) FMCAfam 325 Tasman & Tisdall (2008) FMCAfam 126 Australian Postal Corporation & Hughes (2009) FCA 1057 Brown v Repatriation Commission (1985) 7 FCR 302 LDME and JMA (2007) FMCAfam 712 Comcare & Etheridge [2006] FCAFC 27 Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
| Applicant: | MR DALE |
| First Respondent: | MS DALE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | TVC 21 of 2012 |
| Judgment of: | Coker FM |
| Hearing date: | 6 June 2012 |
| Date of Last Submission: | 6 June 2012 |
| Delivered at: | Townsville |
| Delivered on: | 12 September 2012 |
REPRESENTATION
| Applicant: | In Person |
| First Respondent: | In Person |
| Second Respondent: | Department of Human Services |
ORDERS
That the Notice of Appeal filed on 10 January 2012 be dismissed with no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Dale & Dale & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 21 of 2012
| MR DALE |
Applicant
And
| MS DALE |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal from a decision of the Social Security Appeals Tribunal. The decision of the Social Security Appeals Tribunal was handed down on 14 December 2011. At that time, the Social Security Appeals Tribunal set aside the decision under review and substituted its decision to fix the annual rate of child support payable by the applicant for various periods. They were as follows:
·1 January 2011 to 31 December 2011 $24,500,
·1 January 2012 to 2 August 2012 $19,500
·3 August 2012 to 31 December 2012 $14,500.
The appellant, in these proceedings, is Mr Dale. The first respondent is Mrs Dale. The appellant and the first respondent are the parents of the children, [X], born [in] 1994 and therefore just turned 18, though 17 years at the time of the filing of the appeal, [Y], born [in] 1997 and therefore 14 years of age, and [Z], born [in] 2000, having therefore just recently turned 12. The second respondent to the appeal is the Child Support Registrar.
In his notice of appeal, filed 10 January 2012, the appellant seeks to appeal the decision of the Social Security Appeals Tribunal. The appeal is said to be brought pursuant to the provisions of section 110F of the Child Support (Registration and Collection) Act 1988. Under the heading Orders Sought, the appellant details the two following orders:
1. That pursuant to section 110F of the Child Support (Registration and Collection) Act 1988, the decision dated 14 December 2011 by the Social Security Appeals Tribunal (SSAT) be set aside in whole. The SSAT decision is in respect to the application to the SSAT by Mr Dale on 04 August 2011 for review of an Objection Decision by the CSA on 13 July 2011 to a Part 6A objection by Mr Dale on 12 April 2011 to a Change of Assessment decision by the CSA on 30 January 2011.
2. That the case be directed back to the SSAT for rehearing so that objections by Mr Dale to the SSAT decision may be considered.
In fact, in his written outline, provided in relation to argument in respect of the matter, the appellant sets out with more particularity, the orders that are sought from the Court, detailing them as 1 to 7 in page 2 of the written outline of argument. The orders more specifically detailed were as follows:
1. the SSAT decision is set aside in whole
2. the case be directed back to the SSAT for rehearing
3. the SSAT apply a departure from 01 January 2010 when arrears began accumulating.
4. evidence in the form of receipts be provided by the mother to substantiate her estimate of reasonable child support costs.
5. the SSAT consider my objections to their 15 December 2011 decisions
6. the CSA cancel all penalties accumulated while the objection / appeal process has been underway
7. the existing stay order pending finalisation of the SSAT decision remain in place until an SSAT decision is accepted without appeal.
The appellant details, in his notice of appeal, the grounds for appeal under the heading “Grounds of appeal” and there are, in fact, nine grounds delineated. They are as follows:
1. The crucial information – the weekly cost to support our children – on which the SSAT made their decision, was not legally adequate.
2. That the SSAT decision-maker failed to direct Mrs Dale to provide evidence to support her estimated weekly costs to support our children, and used their decision-making power in an improper way by relying on Mrs Dale’s unsubstantiated estimates. The SSAT decision-maker should have been well aware the accuracy of this information was crucial to making a fair and reasonable decision by they did not direct Mrs Dale to provide receipts etc to support her estimates.
3. That without evidence there was no basis on which the SSAT could determine if the estimated weekly costs submitted by Mrs Dale were reasonable.
4. That it is no coincidence Mrs Dale’s estimated weekly cost of $941 for children’s costs is very similar to the current rates of child support as calculated by the CSA (refer to SSAT Decision Para# 56). Mrs Dale has obviously distributed amounts to the various expense categories ensuring the total matches the current CSA calculated rate. As an example during negotiations Mrs Dale’s last estimate to me for fuel was $25/week – now she is saying it is $60/week! $49,000 (refer to SSAT Decision Paragraph# 54) after tax is more than most families earn in a year. How can $49,000/ann possibly be considered a reasonable cost to support 3 children while Mrs Dale claims she is working 3 hours/day, 6 days/week and I am unemployed? Despite being unemployed the CSA have inappropriately applied an arbitrary $70,000 ATI to me. The current rates of child support as calculated by the CSA are based on this $70,000 ATI.
5. That the SSAT decision-maker used their decision-making power in an improper way by ignoring my comments submitted to the SSAT on Mrs Dale’s estimate of weekly costs to support our children. In my letter to the SSAT dated 07 December 2011 I stated I believed some of the children’s costs have been overstated and why – specifically food, fuel, water & electricity and entertainment & hobbies. I believe food has been overstated by at least $70/week, fuel by $40/week, entertainment & hobbies by $30/week (refer to SSAT Decision Paragraph# 50). I believe water & electricity ($33/week) has been overstated by $15/wee at the very least. If these reductions are taken into account the total weekly children’s costs would be $786/week. The SSAT allowed me the opportunity to review and comment on the children’s expenses listed by my ex-wife but then inexplicably chose to disregard my submission without any reason or justification.
6. That if the SSAT accepted Mrs Dale’s estimate of weekly costs, and not mine, because of her claim in a letter after the hearing that my understanding of costs was dated, the decision-maker failed to provide me with an opportunity to comment on information that could adversely affect me if taken into account, ie. The decision was not make in a way that was procedurally fair. If the SSAT had asked I would have said our three children were in my care for two weeks in June/July and 3 weeks in December 2011. Two of our children were in my care for one week in September 2011. While the children were regularly in my care for 138 nights/year I kept an accurate and detailed spreadsheet of all costs – including children’s costs – for cashflow & budgeting purposes.
7. That by accepting Mrs Dale’s unsubstantiated estimate of weekly costs to support our 3 children, the SSAT has effectively endorsed the $70,000 ATI prescribed to me by the CSA, resulting in my future payments continuing to be significantly more than a half share of actual reasonable costs, and the accumulated arrears amount not being reduced. The arrears amount is the accumulated difference between the amount I have been paying and the rate calculated by the CSA. The CSA decision to apply a $70,.000 ATI while I have been unemployed, and the unfair arrears amount which the CSA is seeking to collect, are primary objections in my 04 August 2011 appeal to the SSAT. Despite being unemployed I have undertaken to continue paying a half share of reasonable actual costs, and have been contributing in excess of $1500/mth over the past 30 months from my rapidly diminishing capital. I believe a half share of reasonable actual costs is approximately $1,500/month. I feel this is a strong indication of my commitment to support my children.
8. That the SSAT decision failed to include an order that the CSA cancel arrears penalties accumulated while the objection process has been under way.
9. That no attempt was made in the SSAT decision to address many of my objections included in my application for review to the SSAT date 04 August 2011.
Quite simply, the appellant seeks, as he described it in his submissions to me, a reversion back to the Social Security Appeals Tribunal for consideration of his original case and for a re-hearing by the Social Security Appeals Tribunal, so that the objections of the appellant may be considered.
The appellant indicated, in the brief addresses that were provided in relation to this matter, that he, as he put it, “felt really badly done by”. In his submissions, both written and oral, it was clear that there were a number of basis’ upon which he said that the Social Security Appeals Tribunal had erred and that it was sufficient to satisfy a finding that there had been a determination made, which was not according to law. The appeal can be broken down, it would appear, into five specific grounds, in fact the legal representative for the second respondent, the Child Support Registrar, noted in their outline as follows:
The appeal articulates nine grounds which are summarised under five ‘points of law’ in the outline of argument filed by the Applicant. The points of law raised by the Applicant are summarised as follows:
1) There was insufficient evidence or other material to justify the decision (Grounds 1, 2 & 3);
2) The decision was a decision that no reasonable decision-maker could make (Ground 4);
3) The decision was made in accordance with a policy without taking into account the circumstances of the case (Ground 7);
4) The decision-maker failed to consider a relevant consideration (Grounds 5, 8 & 9); and
5) The Applicant was denied procedural fairness (Ground 6).
The various grounds relied upon in relation to each of those points of law can be summarised as grounds 1, 2 and 3 relating to point 1, ground 4, relating to point 2, ground 7, relating to point 3, grounds 5, 8 and 9, relating to point 4 and ground 6 relating specifically to point 5.
PRINCIPLES
In Farrens & Farrens (2010) FMCAfam 325 Slack FM noted at paragraph 20 the following:
The Child Support (Registration and Collection) Act 1988 makes clear that a party to a proceeding before the SSAT may appeal on a question of law.
In commenting upon that particular statement he cited with approval the decision of Brown FM in Tasman & Tisdall (2008) FMCAfam 126 at paragraph 44 when Brown FM made the following comments in relation to a jurisdictional error:
An Administrative Tribunal exceeds its powers and thus commits jurisdictional error, which is correctable on appeal in respect of a question of law, 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 a 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.
Slack FM concluded his commentary in relation to the matters and principles at paragraph 22 of Farrens & Farrens (supra) by saying:
It seems clear though that findings of fact, including inferences, may be reviewed to determine whether there has been an error of law
More particularly, however, it should also be noted as follows:
a)An appeal from a decision of the Social Security Appeals Tribunal may only be brought on a question of law. Section 110B of the Child Support (Registration and Collection) Act states:
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 the proceeding.
b)The existence of a question of law is critical to the exercise of the jurisdiction of the Court to hear an appeal from the SSAT see Flick J in Australian Postal Corporation & Hughes (2009) FCA 1057 in respect of an analogous provision with respect to appeals from the Administrative Appeals Tribunal. There Flick J said:
The jurisdiction being exercised is nevertheless constrained by the requirement that the appeal be “on a question of law”.
c)In Brown v Repatriation Commission (1985) 7 FCR 302 at 304 Bowen CJ, Fisher and Lockhart JJ observed in respect to this constraint:
The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal: rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it.
d)The orders that a court makes, therefore, must “flow from a finding in favour of the appellant on an identified question or questions of law”. In LDME and JMA (2007) FMCAfam 712, Halligan FM observed:
The basis and focus of a section 110B appeal is a question of law. The appeal is not one in which findings of fact per se can be called into question (Comcare & Etheridge [2006] FCAFC 27 at [14] per Branson J with whom Spender and Nicholson JJ agreed). The Grounds of Appeal called for in the Notice of Appeal in this Court assume the provisions of s.110B. Thus, in my view the Grounds of Appeal to be set out in the Notice of Appeal should ideally be expressed in a way that enables the respondent and the Court to identify the question or questions of law sought to be raised by the appellant and the reasons why a finding for the appellant on that question or those questions should result in the orders sought in the Notice of Appeal being made.
As is obvious from the following recitation of statements in relation to the matters of law, a finding of fact does not, of itself, automatically give rise to an error of law. As Brown FM in Tasman & Tisdall (supra) noted:
A question of law arises if an administrative tribunal makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise in rendering its decision perverse or unreasonable or otherwise offending logic.
Following on from the matters that I have detailed in the principles in respect of this matter, it is noteworthy that the legal representatives for the Child Support Registrar made similar submissions in relation to the matter upon the basis that they say they submitted that there was no error of law.
At paragraphs 24 and 25 of the written submissions, it was said:
24.For a party simply to assert that a tribunal has “erred in law” in making a particular finding is not to state a question of law. See Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232, (2003) 76 ALD 321, 38 AAR 55. The particular question of law which is said to arise from the decision of a tribunal must be “stated with precision as a pure question of law”.
25.No question of law can be discerned from the Applicant’s ground of appeal in the present case. To employ Branson J’s words in Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649, with Jacobson and Bennett JJ concurring, in the present case, the ‘questions’ stated by the Applicant in the appeal (which are not questions at all) have been “impermissibly drawn in a way calculated to cause this Court to review the decision of the [SSAT] rather than to answer stated questions of law”.
Quite simply, the position of the second respondent is that there is no question of law to be dealt with. It is noteworthy that the first respondent, in her outline, filed 18 May 2012, similarly noted, at the conclusion of her outline:
In conclusion I submit that the appellant has not substantiated his claim that there are errors of law and he is seeking an impermissible merits review of the case.
The position of the first respondent was basically, I think, to adopt the submissions made by the legal representatives for the Child Support Registrar and I will proceed upon the basis that the Child Support Registrar’s submissions are entirely supported by the first respondent. I intend to address each of the grounds of appeal in relation to each of the five points of law that have been identified.
INSUFFICIENT EVIDENCE, GROUNDS 1, 2 AND 3
The appellant here says that there was insufficient evidence of any sort to justify the decision that was made. The appellant’s argument is that as no receipts were produced, it was impossible for the members of the SSAT to be satisfied to a sufficient level, that the first respondent’s estimates of expenses was reasonable in the circumstances. It was submitted on the part of the appellant, therefore, that there was no basis upon which an assessment could be made as to expenses which were subsequently then relied upon.
The first respondent’s outline noted the recognition by the Social Security Appeals Tribunal of the fact that significant costs for the children related to their private school fees. The Tribunal was, the first respondent said, also addressed regarding other costs that related to the provision for and support of the children and in particular, and it is emphasised by the first respondent, exercised an appropriate discretion where, for example, an amount claimed in relation to food and household expenses was reduced from $270 to $200 per week. The position of the first respondent was therefore to say that there was evidence and appropriate consideration by the Tribunal which provided a basis for the finding and determination that they made.
A similar stance was taken by the legal representatives for the Child Support Agency, noting particularly that the findings that were made are, in fact, not findings of law but findings of fact and they therefore do not give rise to a question of law which is reviewable on appeal. In particular, they noted the comments of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where it was noted that:
…there is no error of law in simply making a wrong finding of fact, unless there is no evidence to support that finding.
It was clear and it was emphasised that inquiry was made by the Social Security Appeals Tribunal in relation to various expenses and noted, at paragraph 29 of the submission, that oral evidence was given by both the appellant and the first respondent, as well as the provision of statements and documentation which were sufficient, the Tribunal said, to satisfy them of the evidence required to make their finding. The SSAT, in fact, notes in its decision, at paragraph 51, as follows:
Having examined the expenses listed by Mrs Dale, the Tribunal is satisfied that, on the whole, the expenses listed by her do not appear unreasonable. Even though Mr Dale contends that some particular amounts are overstated, he also contends that others are understated. In the view of the Tribunal, the overall costs for the children are likely to be of the order stated by Mrs Dale.
Clearly, the Tribunal has turned its mind to the evidence available and made additional inquiry as they considered necessary, in order to ascertain the weekly costs related to support of the children. It is a finding of fact and does not raise a question of law. Accordingly and quite obviously, therefore, the first point of law and argument in relation to grounds 1, 2 and 3 should be dismissed and I intend to so order.
UNREASONABLENESS, GROUND 4
The appellant suggests that the decision made by the members of the Tribunal was one which, “no reasonable person could have made”. There are two points argued in relation to that. The first relates to the submission that the first respondent had fabricated her evidence relating to the costs of the children and secondly, that the quantum determined as necessary to support the three children, $49,000, was unreasonable when compared to the income of the appellant and the first respondent.
The first respondent’s position in relation to that was simply to say that the decision was reasonable and was based on the evidence that was available to the Tribunal. The second respondent simply relies upon the submission that the costs of the children are findings of fact and not findings of law which, therefore, preclude any further determination or a basis upon which there could be reliance for a successful appeal.
It is understandable that the submission of the Child Support Agency is to say that if, as is submitted by the appellant, the Tribunal has made a decision which no reasonable person could have made, then it falls upon the appellant to demonstrate that it is a decision that no logical, reasonable or rational person could have made upon the evidence provided, in relation to the matter.
However, it is clear that the Tribunal found that both the appellant and the first respondent had, “significant assets and/or financial resources which could be used to support the children” and in particular, that the appellant had a cash sum available to him which, when added to the value of shares, was significant. The finding was made that it was just and equitable for both parents to share equally in the expenses attributable to the support of the children and it is therefore submitted that the appellant is unable to establish that the decision was so unreasonable that it amounts to a question of law and therefore ought to be dismissed.
In that regard, I must say that I am similarly inclined in relation to this matter. It may be that the appellant is unsatisfied with the totality of the claim made in relation to the costs for the support of the children but it clearly falls within the ambit of what would be reasonable and expected, particularly when one is mindful of the fact that private school fees were included as an expense in relation to such matters. I am satisfied that there is no error of law arising in relation to this second point and intend to dismiss that aspect of the appeal.
POLICY CONSIDERATIONS, GROUND 7
The appellant submits, in that regard, that the decision made by the Social Security Appeals Tribunal was one made according to policy but without account being taken of the circumstances of his particular case. In that regard, he particularly noted that he was unemployed, though not on unemployment benefits. His position, in that regard, was simply to say that he wished not to be a, “burden on taxpayers”, unless it was absolutely necessary that he do so.
His indication was that in the alternate, he had chosen to live frugally and to draw down on the proceeds that remained from the sale of his home and eliminated all debts whilst he was looking for employment. The appellant says that the Tribunal ignored the fact that the Child Support Agency, in their original determination, did not consider the financial circumstances of the appellant when they supported the first respondent’s financial expenses in relation to the children. In that regard, the first respondent simply submitted that the decision had been made in a, “fair and reasonable way”, and took into account all appropriate circumstances.
Again, the legal representatives for the Child Support Registrar simply submit that the ground of appeal is misconceived and does not raise a question of law. On the part of the second respondent, it is submitted that the Tribunal, “did not apply a policy, rather the Child Support legislation was applied to the circumstances of the case”. The submission goes on to assert that the Tribunal found that a ground of departure was established and subsequently, it was just and equitable and otherwise proper to depart from the administrative assessment.
Again, it is clear that the members of the Tribunal have acted in an appropriate manner, exercising the required discretion in respect of the application of the Child Support legislation to the circumstances of the case. It is, again, a situation where the appellant simply disagrees with the decision but raises no real basis upon which it could be contended that an error of law has arisen. It is proper and I intend, therefore, to dismiss that particular ground.
RELEVANT CONSIDERATIONS, GROUNDS 5, 8 AND 9
The appellant asserts that the Tribunal has failed to consider relevant considerations in that they, firstly, failed to consider his submissions in relation to the costs of the children, failed to order the Registrar to cancel late payment penalties and failed to consider his objections listed in his appeal application.
The first respondent, in relation to those particular issues, noted that both she and the appellant were given a chance to comment on all relevant information and, in fact, in the submissions prepared by the appellant, he notes:
The SSAT invited me to review and comment on the children’s expenses listed by Mrs Dale then chose to disregard my submission without reason or justification.
The fact is that the tribunal clearly considered the evidence of both the appellant and the first respondent, in relation to the costs of the children. They detailed, in their decision, the basis upon which they found that they did not consider the expenses claimed to be excessive but clearly it was a consideration of the evidence that was before the Tribunal and a proper exercise of discretion. It does not raise a question of law.
As stressed by the legal representatives for the second respondent, the Tribunal properly did not consider any late payment penalties or set out to order their cancellation, as it was a matter outside the jurisdiction of the Tribunal and therefore a matter upon which they simply could not and should not comment, as they had no authority or power to make such orders.
The fact that the Social Security Appeals Tribunal failed to include an order with regard to the Child Support Agency cancelling arrears penalties accumulated while the objection process was under way is in no way an error of law but in fact an appropriate and proper stance to take by the Social Security Appeals Tribunal.
The third ground in relation to the appropriate consideration to be given in relation to this matter relates to ground 9 which suggests that the members of the Social Security Appeals Tribunal, made no attempt to address many of the objections included in his application for review of 4 August 2011.
In that respect, the Social Security Appeals Tribunal, in their decision of 14 December 2011 appropriately exercised their legal obligations in relation to a review of the objection decision and were required to consider whether there were legal grounds for departure that were established and whether it was just and equitable and/or otherwise proper to depart from the administrative assessment.
The Social Security Appeals Tribunal were precluded, obviously, from considering matters outside their jurisdiction and as was emphasised on the part of the second respondent, it would have been, in fact, inappropriate for them to have looked at such matters, which fell outside their authority.
Again, whilst the appellant challenges the Social Security Appeals Tribunal’s exercise of their power, he does not show any failure arising in relation to such matters and I am satisfied the only appropriate and proper course is that the ground of appeal detailed at grounds 5, 8 and 9 should be dismissed.
PROCEDURAL FAIRNESS, GROUND 6
The appellant says that there was correspondence from the first respondent to the Tribunal after the hearing and that if that were in fact the case, then there was a failure to provide him with an opportunity to comment on information that could adversely affect him.
However, that contention flies in the face of the clear indication previously given. The Social Security Appeals Tribunal relied upon additional material provided by both the appellant and the first respondent and in particular, noted the contents of their respective statements of financial circumstances.
The inquiry conducted by the members of the Tribunal was an appropriate one and there is no failure on their part to act in an appropriate and procedurally fair way in not, literally reopening comment in relation to the financial aspects of the matter, when both parties had the opportunity to file material to be heard and to file further material.
In that event, there is no basis upon which it could be considered that there had been a failure to provide procedural fairness and that, in any event, the ground does not raise a question of law. I intend, in the circumstances, to dismiss ground 6.
CONCLUSION
As is obvious from the reasons that I have given in relation to this matter, the issues that have been taken by the appellant to the findings of the Social Security Appeals Tribunal relate generally to the expenses that they have found attributable to the support of the children and the application of the evidence that was available in relation to the matter.
It is an argument based entirely on fact. It is an argument which cannot, in any way, give rise to a finding that there had been in any way an error of law. If anything, the only position taken by the appellant in relation to this matter is to suggest that there should be some review of the findings of the Social Security Appeals Tribunal which would be a merits assessment and not a determination in any way relating to an error of law. It is clear, in my assessment, that in all respects the appeal ought to be dismissed and the order of the Court accordingly will be that the appeal filed 10 January 2012 be dismissed and that there be no order as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 12 September 2012
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