Dessen and Dessen (SSAT Appeal) - [2011] FMCAfam 1109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DESSEN & DESSEN (SSAT APPEAL)

[2011] FMCAfam 1109

CHILD SUPPORT – Appeal from decision of SSAT – consideration of whether one or more errors of law established – consideration of basis upon which SSAT reached determination – findings open on the evidence presented – no error of law established – appeal dismissed.

Child Support (Assessment) Act 1989, ss.117(1)(b)(ii), (4)(g)(ii)

Farrens & Farrens (2010) FMCAfam 325
Tasman & Tisdall (2008) FMCAfam 126
Parkin & Sykes (SSAT Appeal) (2011) FMCAfam 839
Australian Broadcasting Tribunal v Bond (1990) HCA 33

Applicant:

MR DESSEN

Respondent:

MS DESSEN

Other:

CHILD SUPPORT REGISTRAR

File Number:

BRC 6492 of 2008

Judgment of:

Coker FM

Hearing date:

4 October 2011

Date of Last Submission:

4 October 2011

Delivered at:

Townsville

Delivered on:

20 October 2011

REPRESENTATION

Applicant:

In Person

Solicitor for the Respondent:

Legal Aid (Queensland)

Solicitors for the Other Party:

No appearance

ORDERS

That the Notice of Appeal filed on 3 June 2011 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

BRC 6492 of 2008

MR DESSEN

Applicant

And

MS DESSEN

Respondent

REASONS FOR JUDGMENT

This is an appeal from a decision of the Social Security Appeals Tribunal. The decision handed down by the Tribunal on 9 May 2011 was in these terms:
On 4 May 2011, the Tribunal decided to set aside the decision of the objections officer and substitute a decision that for the period 22 July 2010 to 31 December 2011, Mr Dessen’s adjusted taxable income be set at $46,697 per annum.
In fact, it should be noted that there appears, at least on the face of it, to be a small error in that regard, in that the calculations that were contained within the decision given by the Social Security Appeals Tribunal fixed the income and resources available to Mr Dessen at $46,922, for the financial year 2009/2010. If anything, it appears that the confusion arose in relation to this matter as the amount of $46,697, a matter of some $230-odd difference, arose from the fact that that was the taxable income for Mr Dessen for the financial year ended 30 June 2009, rather than for the next financial year.
In any event, it is of little compass in relation to the determination of this matter. The grounds for the appeal filed by Mr Dessen on 3 June 2011 are as follows:
1.SSAT erred in failing to make a just and equitable decision, as is required by section 117(1)(b)(ii) of the Child Support Assessment Act 1989m, by discarding factual information and then relying on ambiguous information. (See further annex 3, point 1)
2. The SSAT erred in failing to make a just and equitable decision, as is required by section 117(1)(b)(ii) of the Child Support Assessment Act 1989, by unreasonably attributing the financial reward for work undertaken by the applicant’s spouse as a financial reward and thus financial resource of the applicant. (See further annex 3, point 2)
3.The SSAT has erred in law by not considering the mandatory conditions required to apply an earning capacity in its finding. The SSAT determined a figure of the applicant’s 2009-2010 income that is identical to the applicant’s 2008/2009 taxable income. (See further annex 3, point 3)
4.The SSAT erred in law to make a just and equitable decision, as is required by section 117(1)(b)(ii) of the Child Support Assessment Act 1989, by contradicting its statement in careful consideration that it is unjust and inequitable that 100% of the income from [S] is the applicant’s income and 50% of income from the [Y] is also the applicant’s income. It is impossible that the applicant could contribute 100% to both [S] and the [Y] at the same time.
5.The SSAT erred in failing to make a just and equitable decision, as is required by section 117(1)(b)(ii) of the Child Support Assessment Act 1989, by unreasonably considering the home office expenses as solely of a personal benefit. (See further annex 3, point 5)
6.The SSAT erred in law by failing to make a just and equitable decisions, as is required by section 117(4)(g)(ii) of the Child Support Assessment Act 1989, by failing to consider capacity to pay child support during this hardship situation. (See further annex 3, point 6)
As I have indicated, the decision of the Social Security Appeals Tribunal was to fix an adjusted taxable income for the appellant in the range of $46,697 to $46,922. The Social Security Appeals Tribunal determined, following the consideration of this matter, that the payments that would be required, arising from the determination, would mean a payment by the appellant in relation to support to be provided for the child [X], born [in] 2006, would be fixed in the sum of $3009 per annum. In other words, payment of approximately $260 per month.
The appellant has not made those payments in there entirety, though it is unfair for the Social Security Appeals Tribunal to have determined that he has not paid any payments in relation to the support of the child [X]. Rather, his position has been to say that he is unable to meet the obligations that were imposed pursuant to the determination of the Social Security Appeals Tribunal and he, after a period of one or two months in the latter part of 2010, has reverted to the making of payments in the sum of $63 per month, which is what he says he is able to afford, in relation to this matter.
I have indicated what was the finding of the Social Security Appeals Tribunal and of the notice of appeal which has been brought in relation to this matter. Quite simply, the appeal, though it contains six grounds, can be broken down more specifically to three heads of appeal. The first relates to the provisions of section 117(1)(b)(ii) of the Child Support (Assessment) Act 1989. Section 117(1)(b)(ii) is in these terms:
(1) Where:
(b) the court is satisfied:
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
That section relates to the grounds of appeal contained within grounds 1, 2, 4 and 5 of the grounds of appeal.
Ground 3 relates to a contention on the part of the appellant that the Social Security Appeals Tribunal has not determined an earning capacity in its findings as to the income of the appellant, because the figure referred to in the decision as to the income for the financial year 2009/2010 is identical to the appellant’s taxable income for the financial year 2008/2009. I have already commented briefly in these reasons about that particular aspect of the matter, but will address it more specifically a little later in these reasons.
Ground 6 relates to the contention on the part of the appellant that there has been a failure on the part of the Social Security Appeals Tribunal to consider the capacity to pay child support during a situation of hardship. This arises pursuant to the provisions of section 117(4)(g)(ii) of the Child Support (Assessment) Act 1989 and the section is in these terms:
4.In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(g) any hardship that would be caused:
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.

Principles

It is clear, that the primary the submissions made by the appellant in relation to this matter is that there has been an error of law arising from the manner in which the Social Security Appeals Tribunal has dealt with the question of the appellant’s income, and in particular a failure to acknowledge the legitimacy of the distribution of income between the appellant and his present wife, Ms S. In that respect, however, it should be noted that an error of law is not widely construed, because, on the face of it, any issue arising with regard to a consideration of the appellant’s income may in fact be only an error arising from a consideration of matters of evidence.
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 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.
It looms large in relation to this matter because the position taken by the appellant in relation to the proceedings is overwhelmingly to suggest that the social security appeals tribunal has made a fundamental error in relation to the determination of the income to be utilised for the purposes of calculation of child support. In that respect the appellant, in documentation annexed to the notice of appeal filed

3 June 2011, sets out with greater precision the concerns that are expressed by him in relation to each of the grounds of appeal.
In relation to the first of the grounds of the appeal the appellant refers to the Social Security Appeals Tribunal discarding factual information and relying on ambiguous information. He details there his concerns with respect to the respondent to the application, Ms Dessen not honestly declaring her assets in Japan or providing accurate or precise information in relation to a Japanese facility available to her known as a, “Term Certain Income Stream” which is, to all intents and purposes, the equivalent of an Australian superannuation scheme.
The appellant suggests that there were also other foreign assets under the control of the respondent and that the Social Security Appeals Tribunal erred significantly, in not requiring that documentation provided by the wife in the Japanese language, was translated into English. It is suggested that such a stance by the Social Security Appeals Tribunal unfairly prejudiced the applicant’s case.
Similarly, the appellant contended in relation to income specifically expanded upon in relation to ground 2 of the appeal, that the Social Security Appeals Tribunal:
·   failed to take into account material provided by the applicant in relation to the work input of his current wife.
·   found that the accounts provided by the appellant were detailed and accurate, other than claims in relation to home office expenses; and
·   reached a conclusion that both the applicant and the applicant’s spouse, “genuinely worked in the [business] equally.”
It is contended on the part of the appellant that these findings and/or omissions have led to erroneous findings of such a magnitude that it goes to the very jurisdiction which is purported to be exercised.
Ground 4 of the appeal is, if you like, an elaboration of those matters already referred to in relation to ground 2, because they relate to the ultimate finding made by the Social Security Appeals Tribunal that 100 percent of the income received by the appellant and his present wife’s business, attributable to a contract held with [S], should be 100 percent attributable to the appellant and that 50 percent of the income from the other contract for service held with [Y], should be attributable to the appellant. It is said that this is contrary to those findings to which I have already referred in relation to ground 2.
Ground 5 relates to the specific determination made by the Social Security Appeals Tribunal that home office expenses, claimed in the sum of $4160, were not appropriately required for a deduction. It was contended on the part of the appellant that the finding by the Social Security Appeals Tribunal that the expenses were incurred and deductible but, to all intents and purposes, were in fact notional costs and not actual costs was not a finding that was open to the Social Security Appeals Tribunal.
I intend to deal with all of those aspects of the matter in one commentary before then turning to those matters which are raised separately in grounds 3 and 6.
The respondent, in relation to this matter, opposes the appeal and quite simply seeks an order that the appeal filed by the appellant should be dismissed. In particular the legal representative for the respondent has detailed in submissions in relation to this matter a commentary in respect of each of the grounds and in particular grounds 1, 2, 4 and 5, to which I have referred. In noting what the findings were in relation to this matter, the legal representatives for the respondent referred me specifically to the decision of Halligan FM in Parkin & Sykes (SSAT Appeal) (2011) FMCAfam 839 at paragraph 35 where Halligan FM said:
A finding of fact without any evidence … is an error of law, but a finding of fact against the evidence or the weight of the evidence is not an error of law.
Halligan FM there made reference to further commentaries on such matters, including reference specifically to Australian Broadcasting Tribunal v Bond (1990) HCA 33 and to the fact that a finding against the evidence or the weight of evidence is not an error of law.
The position taken by the respondent therefore was simply to say that there was no finding of an erroneous nature and certainly no finding so extensive that the magnitude of it went to the jurisdiction, which was purported to be exercised.
In relation to grounds 1, 2, 4 and 5 therefore it is necessary to look at the findings of the Social Security Appeals Tribunal in relation to this matter. The findings were set out in paragraphs 16 through 22 of the reasons for decision of 9 May 2011. They are in these terms:
16.Mr Dessen operates a business in partnership with Ms S (the Business). Until December 2008, Mr Dessen was employed as a supervisor by [S]. After resigning his position he started the Business with Ms S. The Business operates a [omitted] service and contracts Mr Dessen’s services to [S].
17.The 2009/10 financial accounts of the Business reveal:
Item  Amount
Income from [Y] operations       $52,088
Income from [S] contracting      $39,636
Expenses  $41,676
Profit  $50,048
18.There appear to be almost no business expenses associated with Mr Dessen’s services for [S]. He works on their site and uses vehicles and other equipment provided by them. Ms S submitted that computer equipment must be used to prepare invoices and reports but it is clear that this equipment would be required for the [omitted] business in any event.
19.
The expenses appear to be meticulously and fairly collated and the Tribunal is prepared to accept that they are genuine business expenses for child support purposes with the exception of the home office expense of $4,160. This is a notional payment to

Mr Dessen and Ms S for use of one quarter of their premises and while it may well be a legitimate expense for taxation purposes, its deduction operates to characterise a benefit received by a parent as an income reducing expense for child support purposes. The Tribunal calculates that if that expense is excluded and applies all the other expenses to the operation of the [omitted] business, the profit of that part of the business in 2009/10 was $14,572 and the profit from the contracting was $39,636 (both before tax).
20.It is implausible to suggest (as Ms S did) that the contracting is anything other than a fee for the services previously provided by Mr Dessen as an employee of [S]. That income of the Business should be properly regarded as a resource for Mr Dessen. In relation to the [omitted] services, Mr Dessen submitted that Ms S is as heavily involved in the Business as he is and that for 95 per cent of the time both of them are in the vehicle. After detailed examination of the day-to-day operations of the Business, the Tribunal accepts that Ms S and Mr Dessen genuinely work in the [omitted] operations equally and should have the profits from those operations equally apportioned. Doing so would allow a further $7,286 as a resource for Mr Dessen (based on the 2009/10 figures). Taken together this suggests Mr Dessen had access to income and resources totally $46,922 in the 2009/10 financial year.
21.
The Tribunal is satisfied that the difference between the adjusted taxable income used in the administrative assessment in force at the time of the application for departure ($27,114) and

Mr Dessen’s actual income at that time ($46,922) is a special circumstance which would result in an unjust and inequitable determination of the level of financial support to be provided for the child if the adjusted taxable income was to be used.
22.As a result, the Tribunal concludes that a ground for departure under subparagraph 117(2)(c)(ia) does exist.
In particular it is noteworthy that at paragraphs 19, 20 and 22 that the Social Security Appeals Tribunal has considered the financial information before it and has taken such matters into consideration. They noted, for example, in paragraph 19 that the expenses appear to be:
Meticulously and fairly collated and the Tribunal is prepared to accept that they are genuine business expenses for child support purposes, with the exception of the home office expense of $4160.
Quite clearly they have examined the circumstances in relation to the earning of income in relation to this matter quite appropriately and it is noteworthy that there is no objection taken by the appellant in relation to those findings which are favourable to him.
In paragraph 20 they have again considered the income from the contracting that was performed for [S]. They noted that it was:
Implausible to suggest (as Ms S did) that the contracting is anything other than a fee for the services previously provided by Mr Dessen as an employee of [S].
That finding was open to the Social Security Appeals Tribunal in relation to this matter and it is noteworthy in that regard that they found in paragraph 18 that there appeared to be no business expenses associated with Mr Dessen’s services for [S]. Whether, in fact, they were performed to differing degrees by Mr Dessen, the appellant, or his current wife was a matter that was open to them in relation to this matter, and there was quite clearly a meticulous consideration of the financial circumstances that existed. It led to the finding at paragraph 21 to the effect that:
The Tribunal is satisfied that the difference between the adjusted taxable income used in the administrative assessment in force at the time of the application for departure ($27,114) and Mr Dessen’s actual income at that time ($46,922) is a special circumstance.

The respondent’s position is to say that there was a full investigation therefore, in relation to the financial aspects of the matter. Similarly, it’s contended on the part of the respondent that there was a full investigation of her financial circumstances by the Social Security Appeals Tribunal. Comments are made in that regard within the determination of the Social Security Appeals Tribunal, and, in particular, their consideration of the arguments that were put in relation to this matter contained within paragraphs 38 and 39 of the decision. Those paragraphs are in these terms:
38.Mr Dessen argued that the loan should be regarded as a financial resource however was unable to point to evidence that indicated it was anything other than a loan. The Tribunal notes that the loan was in part necessary because Mr Dessen has not paid any of the assessed child support and because Ms Dessen has limited resources due to the pending property division. In the circumstances, the Tribunal does not regard a loan by a grandparent to make up for unpaid child support as a financial resource of a parent particularly in circumstances where the final division of assets (largely in Mr Dessen’s possession) is yet to be finalised.
39.There were considerable submissions regarding Ms Dessen’s access (or otherwise) to a Japanese superannuation account. Nothing in the material presented to the Tribunal indicates that this account constitutes a significant asset or that Ms Dessen has any access to its contents. Accordingly the Tribunal has not included any potential benefit from the account as an asset, in its assessment.
Suffice it to say therefore that in relation to grounds 1, 2, 4 and 5, there has been a meticulous consideration of the financial information that was put in relation to this matter, as well as specific consideration of the weight to be placed upon the evidence that was given by each of the parties involved in this matter, Mr Dessen and Ms Dessen, as well as by Mr Dessen’s current wife, Ms S. The findings that were made by the Social Security Appeals Tribunal were open to them in relation to the determination of this matter.
In particular, they were in a position where they could consider the evidence that was given in relation to the financial circumstances of all of the parties, as well as to consider specifically the evidence, including the demeanour and presentation of all of the witnesses in relation to the final determination.
I am satisfied that this is an instance where there has not been an erroneous finding, including findings specifically relating to the financial circumstances and additional financial resources that might be available to the respondent mother, as well as to the financial circumstances of the appellant father, such that they would be of such a magnitude that it goes to the very jurisdiction which is purported to be exercised. I am not satisfied that any of the grounds contained within grounds 1, 2, 4 or 5 therefore give rise to a basis upon which there could be an appeal upon a question of law.
Ground 3 relates to that matter to which I have already referred, a failure to meet the obligation which falls upon the Social Security Appeals Tribunal to consider the earning capacity of the appellant. Here, in my assessment, there has simply been a typographical error which has arisen in relation to this matter. The decision that has been given by the Social Security Appeals Tribunal clearly fixes the income for the financial year 2009/2010 at $46,922.
Through typographical error, it has been referred to, however, as an adjusted taxable income of $46,697.
It is not, in any way, a failure on the part of the Social Security Appeals Tribunal to meet their obligations with regard to assessing the earning capacity or, in fact, the specific income of the appellant, but rather simply arises from a typographical error. It is not, in any way, a basis upon which it could be suggested that there has been a failure on the part of the Social Security Appeals Tribunal to meet its obligations in relation to determining the income arising, in relation to this matter. The ground must fail.
Finally, ground 6 suggests that there has been a failure on the part of the Social Security Appeals Tribunal to make a just and equitable decision arising pursuant to the provisions of section 117(4)(g)(ii) of the Child Support (Assessment) Act 1989 by failing to consider the capacity to pay child support during a situation of hardship. Here, of course, the obligation falls upon the appellant to show that there has been an omission on the part of the tribunal.
Quite simply, the tribunal considered all of the evidence that was before it. There is no basis upon which it could be suggested that there was a forensic exercise required to be undertaken by the tribunal, in relation to the determination of this matter. Similar to the suggestion that the tribunal, not having taken steps to obtain a translation of documentation which was produced by the wife in Japanese led to some unfairness on the part of the determination in relation to the matter, there is a similar need to consider the plea now raised by the appellant that the Social Security Appeals Tribunal failed to take into consideration the care responsibilities that the appellant had in relation to his son, now aged 15 years, as well as the obligations that arose on occasions when both that child and [X] were in the care of the father.
Here, the appellant has been the author of any difficulties that have arisen in relation to this matter. To suggest that the tribunal failed to take into account the costs associated with his support of his son and [X] fails to, in any way, recognise that information with regard to such matters was not provided by the appellant to the tribunal. As pointed out on behalf of the respondent, there was no reference in the appellant’s financial statement to a receipt of family tax benefits, and his response in submissions to me in relation to this matter was to say that it was a matter of “dignity” and that he did not seek family tax benefits or other benefits that might be available.
Similarly, he indicated in the affidavit material filed before the tribunal that he did not receive any government welfare or benefits and did not detail expenses specifically relating to care or responsibility associated with the provision for his son or for the child, [X]. He has remained silent on the points, but now complains that they have not been taken into consideration.
It is improper to expect that the tribunal would have made assumptions without an evidentiary basis, and, accordingly, it is clear that this particular ground must also fail.
In my assessment, the appellant has been wholly unable to satisfy the court in any way to an error of law arising in relation to this matter, and, accordingly, the order of the court will simply be to the effect that the appeal filed 3 June 2011 be dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 20 October 2011