Dawson v Dawson & Anor
[2018] FCCA 896
•13 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAWSON v DAWSON & ANOR | [2018] FCCA 896 |
| Catchwords: CHILD SUPPORT – Review of a decision of the Administrative Appeals Tribunal – where Applicant seeks impermissible merits review – no jurisdictional error – application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.37, 44, 44AAA Child Support (Assessment) Act 1989 (Cth), ss.98C, 98S, 117 |
| Cases cited: Morton & Morton & Anor (SSAT Appeal) [2014] FCCA 1737 Phelps & Child Support Registrar & Anor (SSAT Appeal) [2015] FCCA 159 |
| Applicant: | MR DAWSON |
| First Respondent: | MS DAWSON |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 1500 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 27 March 2018 |
| Delivered at: | Albury |
| Delivered on: | 13 April 2018 |
REPRESENTATION
| The Applicant: | In Person |
| The First Respondent: | No Appearance |
| Counsel for the Second Respondent: | Ms Whittemore |
| Solicitors for the Second Respondent: | Sparke Helmore Lawyers |
ORDERS
The Notice of Appeal (Child Support) is dismissed.
The Applicant pay the Second Respondent’s costs fixed in the sum of $7066.
IT IS NOTED that publication of this judgment under the pseudonym Dawson v Dawson & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1500 of 2017
| MR DAWSON |
Applicant
And
| MS DAWSON |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced by a Notice of Appeal (Child Support) application filed by the Applicant on 21 July 2017. The Applicant subsequently filed an Amended Notice of Appeal (Child Support) on 24 August 2017 on which he proceeded.
The Applicant appeals from a decision of the Administrative Appeals Tribunal - Social Services and Child Support (‘the Tribunal decision’) given on 14 June 2017.
The Applicant seeks the following orders:-
“1. An order that the appeal be allowed.
2. An order setting aside AAT’s decision made on 14 June 2017 and varied as follows:
a) Correct amount of child support to be recalculated for the period 6th July 2016 - 17 March 2017.
b) Correct of child support be calculated for the period after 17th March 2017.”
The decision of the Tribunal was posted to the Applicant on 26 June 2017 and the appeal was filed within time being 21 July 2017. This Court’s jurisdiction is only enlivened by a question of law properly raised on appeal.[1]
[1] Administrative Appeals Tribunal Act 1975 (Cth) s 44AAA.
The Amended Notice of Appeal (Child Support) is annexed to these reasons (‘Annexure A’). It sets out “Question of law”, which includes allegations of bias and procedural unfairness together with claimed errors of law. Under the “Grounds of Appeal” heading the Applicant takes issue with factual findings made by the Tribunal; again alleges bias in the Tribunal decision; and makes complaint about the processes of the Tribunal including procedural unfairness.
As to the orders sought, orders 2(a) and (b) invite the Court to recalculate the amount of child support payable by the Applicant for the period covered by the Tribunal decision based on what the Applicant contends is the correct assessment of the evidence that was before the Tribunal. The seeking of such an order is, as submitted by the Second Respondent, misconceived. In exercising jurisdiction under ss. 44 and 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’), the Court is limited to identifying an error of law in the Tribunal decision. It is not for the Court to rehear the application that was before the Tribunal on the merits and substitute its own decision for that of the Tribunal.
Accordingly, the Second Respondent contends that orders 2(a) and (b) should be struck out. The Court accepts that submission. Should the appeal be successful, the decision of the Tribunal will be set aside by the Court and the matter remitted to the Tribunal for redetermination according to law.
The Applicant relies upon evidence in these proceedings as contained in affidavits affirmed by him on 12 July 2017 and 24 August 2017. He has filed no written submissions. The Second Respondent relies upon written submissions dated 27 October 2017.
There is before the Court and tendered in evidence and marked as ‘Exhibit 1’ a decision and reasons for the decision of the Tribunal of 14 June 2017. The Tribunal determined the decision under review was set aside and the Tribunal substituted it’s decision that:-
“For the period 6 July 2016 to 31 December 2018, [the Applicant]’s adjusted taxable income is 78,000 per annum.”
Also before the Court are the documents that were before the Tribunal in the proceeding to which this appeal relates as provided by the Tribunal in correspondence of 31 August 2017 and in accordance with the agreed procedure between the Court and Tribunal. Contained within those documents is, relevantly, a medical certificate provided by the Applicant from Dr B dated 24 March 2017. That medical certificate provided that the Applicant was unfit for work/study from 17 March 2017 to 24 May 2017, suffering from a temporary condition with uncertain prognosis and “symptoms of lower back stiffness, left leg weakness/numbness/tingling, difficulty walking”.
Background
The Applicant and the First Respondent are the separated parents of the child, [X]. A case has been registered with the Department of Human Services (‘the Department’) since October 2014 and child support has been collected by the Child Support Registrar (‘the Registrar’) since 24 March 2015. The Applicant is the liable parent to pay child support to the First Respondent.
The administrative assessments of child support, wherein the Applicant was assessed to pay child support to the First Respondent, were as follows:-
a)for the period 1 December 2015 to 30 September 2016, at the fixed annual rate of $1352 per annum based on the Applicant’s 2014/2015 adjusted taxable income (‘ATI’) of $0, and the First Respondent’s 2014/2015 provisional ATI of $19,434; and
b)for the period 1 October 2016 to 31 December 2017, at the minimum annual rate of $414 per annum based on the Applicant’s 2015/2016 ATI of $20,293 per annum, and the First Respondent’s 2015/2016 provisional ATI of $18,279.
On 6 July 2016, the First Respondent applied for a departure determination on the basis of the special needs of [X] (‘Reason 2’); the manner in which [X] was being educated (‘Reason 3’); the Applicant’s income, property and financial resources (‘Reason 8A’); and the Applicant’s earning capacity (‘Reason 8B’).
The Applicant cross-applied on the basis of Reason 3, Reason 8A, Reason 8B, the costs of accessing [X] (‘Reason 1’), because of money, goods or property paid to another for the benefit of [X] (‘Reason 5’), high child care costs (‘Reason 6’), and the necessary expenses for self‑support (‘Reason 7’) and because of the First Respondent’s income, property and financial resources and because of the First Respondent’s earning capacity. The grounds for departure of both the application and cross-application were derived from s.117(2) of the Child Support (Assessment)Act 1989 (Cth) (‘the Assessment Act’).
On 15 September 2016, a delegate of the Department of Human Services found that Reason 8A was established on account of the Applicant’s income, property and financial resources. The delegate set the Applicant’s ATI at $78,000 per annum for the period 6 July 2016 to 31 December 2019, to be adjusted annually in July in accordance with the child support inflation factor. The delegate was not satisfied that any of the other grounds for departure advanced were established.
On 26 September 2016, the Applicant lodged an objection to the decision, and on 25 November 2016 an objections officer of the Department of Human Services allowed the objection and found Reason 8A was also established on account of the Applicant’s income, property and financial resources, but set the Applicant’s ATI at $68,829 per annum for the period 6 July 2016 to 30 November 2018.
On 7 December 2016, the Applicant applied to the Tribunal for review. The hearing was conducted on 5 May 2017 wherein both parties participated by conference telephone and gave evidence on affirmation.
The Tribunal Decision
On 14 June 2017, the Tribunal set aside the decision under review and in substitution set the Applicant’s ATI at $78,000 per annum for the period 6 July 2016 to 31 December 2018 (as set out in paragraph nine above).
The Tribunal, in paragraph 10 of the Decision Record, correctly set out those matters of which it was required to be satisfied pursuant to s.98C of the Assessment Act. The Tribunal said:-
“ The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Assessment Act. The liable parent or carer may apply to the Child Support Registrar for a determination to depart from the Child Support Administrative Assessment under Part 6A of the Assessment Act. Section 98C of the Assessment Act provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process. The Registrar, and the tribunal standing in the place of a Registrar, must be satisfied that:
(i) there is a ground to depart from the administrative assessment of child support;
(ii) it is just and equitable to depart; and
(iii) it is otherwise proper to depart.”
Grounds for departure
The Tribunal noted in its Decision Record that these are set out in s.117(2) of the Assessment Act. The Tribunal set out in its decision record further that if it was satisfied that a ground or grounds existed, and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in s.98S of the Assessment Act which is, relevantly, as follows:-
“CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 98S
Determinations that may be made under Part
(1) The determinations the Registrar may make under this Part are as follows:
(a) a determination varying the annual rate of child support payable by a parent;
…
…
Note: There are limitations on the Registrar making a determination that varies an annual rate of child support payable in respect of a child support case below the minimum annual rate (see section 98SA).
(2) In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
(3) A determination under this Division may make different provision in relation to different child support periods and in relation to different parts of a child support period.
…
(4) The Registrar must give, in writing, the reasons for making the determination (including the reasons for which the Registrar is satisfied as required by paragraph 117(1)(b)).
(5) A contravention of subsection (4) in relation to a determination does not affect the validity of the determination.”
In paragraphs 15 to 19 of the Decision Record, the Tribunal set out the oral evidence of the Applicant. That evidence included that the Applicant had, for 10 years, been self-employed as a (occupation omitted). His day-to-day operation of the business involved (employment omitted). The Applicant described himself as the sole person involved in the business and the person who travelled to (country omitted) and (country omitted) to source materials. He claimed his business in Melbourne dealt with “five to six” companies and his largest buyer was based in Sydney. He claimed that his largest buyer was then bankrupt which, together with his own health issues, had resulted in a downturn in his business since mid 2016.
The Tribunal noted that the Applicant listed his residential address as the address of the business on his Statement of Financial Circumstances. The Tribunal “did not accept that any space was set aside in the apartment specifically for work purposes and noted that the business is paying the rent for [the Applicant’s] private residence”. The Tribunal asked the Applicant as to where meetings for the business were conducted, and the Applicant responded that they were only at the (business omitted) offices. When the Tribunal noted to the Applicant that some of his claimed business expenses were for costs at cafes, restaurants and bars, the Applicant told the Tribunal “that sometimes with smaller (businesses omitted), they go to cafes instead”.
The Tribunal asked the Applicant about the (country omitted) arm of his business and the Applicant responded that his parents were conducting that. It was set up in 2010 when he was residing in (country omitted). His role at the time “was to help with selling and marketing and expanding into the (omitted) market”. The Applicant claimed not to be a director or shareholder of the (country omitted) company.
Based on the oral evidence of the Applicant and the documents before it, the Tribunal made adverse credibility findings in respect of the Applicant’s evidence as succinctly set out in the Second Respondent’s submissions as follows:-
a)the Applicant had completed a rental application form in 2014 in which he indicated that he had income from self-employment of $6000-$7000 per month;
b)the Applicant had not been forthcoming in his evidence about the existence of a fourth bank account. The Tribunal found statements for this account in the s.37 of the AAT Act documents which evidenced large amounts flowing in and out;
c)in relation to the Applicant’s claimed medical issues:-
(i)he gave “extensive and unclear responses” to questions about whether he had attended a neurosurgeon and the extent to which he could walk or not walk;
(ii)other than a medical certificate indicating that he had no capacity to work for a two month period, he had provided no evidence about the ongoing effect of his medical condition or ability to maintain his business; and
(iii)his evidence of a downturn in the business in October 2016 was inconsistent with evidence suggesting his medical issues did not arise until 2017;
d)the Applicant was unable to explain why he was receiving foreign income and his evidence of his selling activity in Australia was “convoluted”;
e)the business balance sheet for 2015/2016 contained rounded numbers, which appeared to be an estimate rather than accurate figures, and the Applicant claimed that these had been prepared “for both Child Support and ATO purposes”;
f)the Applicant was unable to convincingly explain large cash deposits into his bank accounts. One explanation that he carried $2000 in cash around was inconsistent with his evidence that he only received a $7000 per annum income from the business;
g)the Applicant gave evidence that his credit card was used for both business and personal expenses but was unable to explain how he accounted for them, or why his business bank account was used for personal expenses such as family law legal costs;
h)when the Tribunal observed that there were no significant daily expenses coming out of any of his accounts, the Applicant simply responded “yes”; and
i)the Applicant gave lengthy and unclear evidence about whether he was in receipt of a Newstart Allowance and provided submissions after the hearing stating that payments commenced after the hearing.
On account of the above, the Tribunal did not accept that the Applicant was a credible witness in relation to his financial circumstances and did not accept that he had ceased operating his business. The Tribunal did not accept that the Applicant had provided full and frank disclosure to the Tribunal about his financial resources. The Tribunal considered that there was at least one other account the Applicant was able to access which pays for his daily expenses such as food and other living costs. The Tribunal noted the cash deposits into the Applicant’s bank account which the Applicant was unable to explain to the Tribunal’s satisfaction, and the Applicant’s lack of care in the financial figures he had prepared for ATO purposes.
The Tribunal said, in paragraphs 21 and 22 of the Decision Record, the following:-
“21. The tribunal had before it two sets of calculations undertaken by the Department. The first of these, undertaken by the senior case officer of the Department, noted the Applicant’s stated income on the rental form of $6000 to $7000 net income per month was consistent with gross income of $98,000 to $118,000 dollars per annum. The senior case officer noted the movement of “significant sums of money” through [the Applicant’s] bank accounts, some of which were transfers between his accounts, and the use of his credit card for apparently exclusively personal expenses. From 13 February 2016 to 12 May 2016 there was expenditure calculated at $6,557.42 on the credit card and from the bank account for the period 12 February 2016 to 23 May 2016 there was personal expenditure, including cash withdrawals, of $8,348.92. The senior case officer noted that this was a conservative figure on the basis that internet cash transfers to unknown destinations had been excluded. Based on expenditure of $14,906.34 over three months, the Applicant had annual expenditure of $59,625 which was equivalent to $79,000 gross per annum of income.
22. In contrast, the objections officer found that, based on the Applicant’s declared expenses of $48,624 per annum, he would require a gross income of $60,840 per annum to meet these costs. The objections officer then looked at a period from 13 July 2016 to 30 September 2016 and identified $17,871 worth of expenses which, when annualised, equated to $53,505.41 net or $68,829 gross income. The tribunal noted that this period was after [the First Respondent] had lodged a departure application with the Department. It was unclear whether [the Applicant] was aware in the period July to September 2016 whether the Department would be looking at his bank accounts to assess his income.”
The Tribunal concluded that the Applicant’s access to income, property and financial resources from his business in each of the child support periods had been significantly higher than the amounts used in the administrative assessments, and that the findings of the senior case officer in the matter provided the best evidence of the Applicant’s level of financial resources at the time the First Respondent lodged the departure application.
The Tribunal accepted that the First Respondent mother was then in receipt of Centrelink payments and Family Tax Benefits. The Tribunal found on the evidence before it that the administrative assessments of child support based on the provisional income of the First Respondent of $19,434 for 2014/2015 year and $18,279 for the 2015/2016 year were reflective of the First Respondent’s level of income, property and financial resources.
The Tribunal found special circumstances such that the ground of departure based on the Applicant’s income, property and financial resources was established.
Just and equitable and otherwise proper
The Tribunal, having been satisfied that there was a ground to depart from the administrative assessment of child support, proceeded to consider the range of factors set out in s.117(4) of the Assessment Act. In paragraph 28 of the Decision Record the Tribunal noted that the administrative assessments of child support reflected the First Respondent having 100 per cent care of [X].
The Tribunal found that [X] had no other financial resources and was entirely dependent on his parents to meet his needs.
The Tribunal found, on the evidence before it, that the parties contributed 50 per cent each toward [X]’s school costs in 2016. The Tribunal noted a matter about which the Applicant complains, namely that the First Respondent did not complete a statement of financial affairs for the Tribunal proceedings. The Tribunal said, in paragraph 29 of the Decision Record, relevantly:-
“Her explanation was that she has a very difficult child and “the tribunal is sending me so many papers” and that the “outcome is really nice, but is not high on my priority list”.”
As a result, at the time of the hearing, the Tribunal had little evidence before it about the First Respondent’s current necessary self-support expenses or the proper needs of [X]. It was agreed between the parents that [X] requires psychological counselling. The First Respondent provided invoices from past counselling at $125 per session. The Tribunal did not have the benefit of taking evidence about these documents at the hearing, and it was unclear to the Tribunal what Medicare rebates, if any, were available for these sessions. The First Respondent had stated during the hearing that [X] had attended six appointments and she could not financially continue for him to attend and was “doing other things” to get him help through the public health system. The Tribunal was not satisfied that there was sufficient evidence before it to ascertain the costs of psychological counselling.
The Tribunal found that the Applicant met the requirements of s.117(7B) of the Assessment Act for a finding of unused earning capacity, but that the First Respondent did not.[2] The Tribunal did not accept that the Applicant’s business had ceased to be a source of financial support for him. The Tribunal noted the medical certificate before it in respect of the Applicant:-
“…listing incapacity for work for the period 17 March 2017 to 24 May 2017 lists the condition as temporary and notes an inability to sit or walk long distances, inability to lift heavy objects and inability to bend.”
[2] Child Support (Assessment) Act 1989 (Cth) s 117(4)(da).
The Tribunal set out in paragraph 31 of the Decision Record, that it considered that as of March 2017, the Applicant had changed his working pattern. However, having regard to the manner in which he gave his evidence at the hearing, the Tribunal did not find that this decision was justified by the Applicant’s state of health. The Tribunal found that the Applicant was:-
“…evasive and unclear in discussing his financial situation, had not provided full and frank disclosure about his bank accounts and gave unconvincing evidence about amounts flowing in and out of his accounts.”
The Tribunal found further that the Applicant had changed his working pattern and commenced on Centrelink benefits in order to affect the amount of child support he was assessed to pay. The Tribunal noted it was open to it to make an earning capacity determination in relation to the Applicant’s financial circumstances.
The Tribunal found it was not open to make an earning capacity determination in relation to the First Respondent’s circumstances, and found that her decision not to work at the time was justified by her caring responsibilities having regard to [X]’s still young age and stated needs, and the First Respondent’s level of care of [X]. In the absence of any evidence from the First Respondent, the Tribunal considered it appropriate to use the self-support amount provided for in the administrative assessments of child support, which was $23,610 per annum. The Tribunal noted that the First Respondent’s receipt of Centrelink and family assistant payments was inadequate to meet those expenses.
The Tribunal considered the statement of financial circumstances placed before the Tribunal by the Applicant which listed household expenses at $393 each week. The Tribunal did not accept the expenses estimated by the Applicant on the basis of the evidence before it, the Applicant putting inconsistent evidence before the Tribunal. The Tribunal found that the calculations undertaken by the senior case officer, albeit conservative, were the most appropriate calculation of the Applicant’s self-support expenses.
The Tribunal was not persuaded that departing from administrative assessments of child support would cause hardship to the Applicant, but found a refusal to do so would cause hardship to [X] and the First Respondent.[3] The Tribunal found it was otherwise proper to make a departure determination. The Tribunal found that the First Respondent was in receipt of family tax benefits and found that any departure determination would not have an adverse impact on the public purse.
[3] Child Support (Assessment) Act 1989 (Cth) s 117(4)(g).
The Tribunal found overall that it was just and equitable and otherwise proper to depart from the assessment and set the Applicant’s ATI at $78,000 per annum as found by the senior case officer. The Tribunal considered this calculation was the best evidence before it, and was undertaken before the Applicant was aware that his bank statements may be scrutinised or ascertain his level of income. The Tribunal said in paragraph 39 of the Decision Record:-
“The tribunal is satisfied that the Applicant had at least this level of income going forward until March 2017 when he changed his working pattern. Given the findings made above about the Applicant’s earning capacity, the tribunal considers it appropriate to continue this level of income forward to the end of 2018.”
The Tribunal found the amounts payable as a result of its findings were an appropriate contribution toward [X]’s needs and departing until 2018 would provide a level of certainty to the parties going forward.
Consideration
The Applicant relies upon the affidavit material filed by him. The affidavits annex a number of pieces of documentary evidence, some of which were before the Tribunal and some of which were not. The Second Respondent objects to the Court receiving fresh evidence that was not before the Tribunal. That material which was not before the Tribunal, was not received as fresh evidence before the Court.
The affidavit of the Applicant affirmed 12 July 2017, has as its contents a reciting of the history of the matter; the Applicant’s disagreement with the Tribunal decision of 14 June 2017; and a disagreement with the Tribunal’s factual findings. From paragraph 13 onward, the affidavit content is in the nature of submissions on a merits review hearing which, of course, this proceeding is not.
The Applicant gives lengthy explanations as to why, in his view, the factual findings of the Tribunal are wrong.
The Applicant does claim as a question of law the Tribunal’s decision to proceed without the need for the First Respondent to complete a statement of financial circumstances for the proceeding. That was a matter for the Tribunal and the Tribunal was satisfied that the mother was in receipt of Centrelink benefits.
In essence, the Applicant simply does not accept the Tribunal decision as stated by him in his affidavit material. He does not accept the decision because he cannot contemplate that the Tribunal did not accept the matters put by him to the Tribunal, and accepted the financial circumstances of the mother.
In his second affidavit affirmed on 24 August 2017, in addition to annexing material that was not before the Tribunal, and which therefore is not accepted into evidence by the Court, the Applicant raises the issue of the mother having book and magazine media deals of considerable financial benefit to her. These were matters not known, to or before the Tribunal at the time of the Tribunal hearing, and indeed remain assertions by the Applicant in relation to a period which forms, if at all, only some part of the assessment period.
Where the Applicant seeks to disagree with the Tribunal’s findings of fact, the Court finds that such findings were clearly open to the Tribunal upon the material before it. Those findings ultimately led the Tribunal to conclude that the Applicant had access to financial resources and the sum of $78,000 per annum. The Tribunal, as set out in the paragraphs above, noted a number of credibility concerns it had with the Applicant’s evidence, and noted that it considered the Applicant had not provided full and frank disclosure to the Tribunal about his financial resources.
As submitted by the Second Respondent, the Tribunal’s finding that the Applicant had access to $78,000 per annum was a finding of fact clearly open to the Tribunal to make, following its assessment of the evidence before it, and for the reasons it gave. The weight to be afforded to a particular piece of evidence is a factual matter for the Tribunal and lies at the heart of merits review.[4] The Applicant’s seeking of merits review in the circumstances of this case is impermissible and establishes no error of law in the Tribunal’s decision.
[4] Phelps & Child Support Registrar & Anor (SSAT Appeal) [2015] FCCA 159, [46].
The Applicant’s grounds which take issue with the Tribunal’s findings in relation to the Applicant’s medical condition also cannot be made out. The Tribunal expressly had regard to the Applicant’s claimed medical condition, including the certificate dated 17 March 2017. Ultimately, the Tribunal did not accept the Applicant’s evidence that he was no longer operating his business in light of its credibility concerns. It found the medical certificate listed the conditions suffered by the Applicant as “temporary”.
The Tribunal also expressly had regard to the Applicant’s claimed receipt of a Newstart allowance, and found the Applicant gave “lengthy and unclear evidence about whether he was in receipt of a Newstart allowance” and his written submissions, made after the hearing, that his Newstart payments had commenced on 15 May 2017. The Tribunal, on the totality of the evidence, however, was not satisfied that the Applicant had ceased operating his business, and nor that any receipt of a Newstart allowance altered his access to financial resources in the sum of $78,000 per annum. These were matters for the Tribunal and findings of fact clearly open to it on the evidence before it. There is no error of law in the Tribunal decision in this regard.
The press material annexed at ‘2-5’ in the Applicant’s affidavit filed 24 August 2017 was not before the Tribunal, and is not taken into evidence before the Court on the hearing of this judicial review application.
The Tribunal had before it evidence that the First Respondent was in receipt of Centrelink benefits and family tax benefits, and that the First Respondent’s receipt of $2000 was the sum total of small amounts she had received for (omitted) work from her friend rather than, as claimed by the Applicant, a “regular” wage.
To the extent that the Applicant alleges that the Tribunal was bound to make an adverse finding against the First Respondent for her failure to submit a statement of financial circumstances, as submitted by the Second Respondent, this ground also cannot succeed. It was a matter of fact for the Tribunal as to whether it would make such a finding. There was no obligation on the Tribunal to make any adverse finding against the First Respondent and the Tribunal did not do so.
The Tribunal ultimately relied on other evidence as to the First Respondent’s receipt of benefits in arriving at its findings in relation to her financial resources. As was said by Riethmuller J in Morton & Morton & Anor (SSAT Appeal) [2014] FCCA 1737 at [45]:-
“The Tribunal, however, must do the best that it can on the material before it. Prima facie, there is an inference to be drawn against a person who fails to provide evidence that appears to be easily available to them and that inference is that the evidence not provided is unlikely to support them. That inference, whilst available, is not an inference that the court or Tribunal is obliged to draw. It is ultimately a question of fact what weight the Tribunal or court places upon evidence of such circumstances, before making an ultimate decision in the case.”
As to the Applicant’s allegations of the First Respondent’s ability to travel overseas, the affidavit material in family law proceedings to which the Applicant alluded, expressly referred to all proposed overseas travel being funded by friends or family and not the First Respondent herself. The Tribunal’s consideration of the evidence before it as to the receipt of provisional incomes by the First Respondent in its determination of the First Respondent’s level of income, property and financial resources, was entirely appropriate and a matter for the Tribunal. No error of law attends the decision of the Tribunal in this regard.
There being no jurisdictional error attending the decision of the Tribunal, the appeal shall be dismissed and costs follow that event.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 13 April 2018
ANNEXURE
(omitted)
0
2
3