Dobbins & Devlin (SSAT Appeal)
[2014] FCCA 1274
•19 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOBBINS & DEVLIN & ANOR (SSAT APPEAL) | [2014] FCCA 1274 |
| Catchwords: CHILD SUPPORT – Appeal from SSAT – child support legislation – assessment – other matters. |
| Legislation: Child Support (Assessment) Act 1989, ss.117(2)(b)(ia) and (ii), 117(2)(c)(ia) Family Law Act 1975, ss.61B, 65DAC |
| Crowell & Bodrey (SSAT Appeal) [2011] FMCAfam 275 Eades v Caddell [2009] FMCAfam 275 Harris & Duerr [2014] FamCA 127 Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 Modlin & Anstead and Anor [2013] FamCA 955 Morgan & Miles [2007] FamCA 1230 MZYTS v Minister for Immigration & Anor [2012] FMCA 1109 Pavli & Beffa [2013] FamCA 144 PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 |
| Applicant: | MS DOBBINS |
| First Respondent: | MR DEVLIN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 2501 of 2013 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 31 July 2013 |
| Date of Last Submission: | 31 July 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 19 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Counsel for the First Respondent: | No appearance by or on behalf of the First Respondent |
| Counsel for the Second Respondent: | Mr Maat |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dobbins & Devlin & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2501 of 2013
| MS DOBBINS |
Applicant
And
| MR DEVLIN |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Background
The Appellant appeals against a decision of the Social Security Appeals Tribunal made in February 2013.
The decision of the SSAT is annexed to the Appellant’s original Notice of Appeal on 4 April 2013. The Appellant filed an Amended Notice of Appeal on 14 June 2013.
The principal issue in the decision of the SSAT was whether a ground existed to depart from the administrative assessment pursuant to s.117(2)(b)(ia) or (ii), or s.117(2)(c)(ia) of the Child Support (Assessment) Act1989 which provide as follows:
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
…
(ia) because of special needs of the child; or
…
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
…
(ia) because of the income, property and financial resources of either parent;
The SSAT set out the background in its Reasons for Decision as follows:
1. … According to the records provided, the original child support assessment was registered with the Child Support Agency (‘the Agency’) on 17 July 2002 as a private collection arrangement. On 17 March 2003, the Agency accepted an application from [the Appellant] for the agency to collect child support directly from [the First Respondent]
2. There have been numerous departure determinations made by the Agency over the years. Most recently the Agency accepted a departure application lodged by [the Appellant] under Part 6A of the Child Support (Assessment) Act 1989 (‘the Assessment Act’) on 23 March 2012. [The Appellant] sought a departure from the administrative assessments on the basis that the costs of [T] are increased because of her special needs (‘Reason 2’),, that she is being cared for, educated or trained in a manner agreed by the parents (‘Reason 3’) and that her financial resources are reduced since taking maternity leave (‘Reason 8’).
3. The most recent departure determination ended on 31 December 2012. The child support assessment then reverted to the administrative formula for the period beginning 1 January 2013. …
4. …
5. On 18 May 2012 a senior case officer of the Agency decided that Reason 8 was established. Having been satisfied that a ground existed to depart from the administrative assessment, the senior case officer made a departure determination in the following terms:
·That for the period 19 March 2012 to 15 March 2013, the adjusted taxable income of [the Appellant] is set at $62,747 per annum and
·That for the period 19 March 2012 to 15 March 2013, the adjusted income of [the First Respondent] is set at $64,220 per annum.
6. On 17 June 2012 [the Appellant] lodged an objection to the senior case officer’s decision and on 11 September 2012 an objections officer of the Agency reviewed the decision of the senior case officer. The objections officer decided to disallow the objection of [the Appellant].
On review the SSAT found that:
22. In the period 9 October 2010 to 5 October 2012 the Tribunal finds that [the Appellant] has paid a total of $35,004.40 in relation to tuition fees and ICT levy costs for [T]. The Tribunal considers these costs to be such that they would significantly affect the costs of maintaining [T] and finds accordingly.
…
30. While a parent may have originally had the expectation that a child was to attend a private school, that expectation can change, in particular in relation to financial circumstances. It was clearly the expectation of both parents that [T] attended kindergarten at (omitted) however, in the Tribunal’s view the expectation of both parents changed when [T] began Prep at a government school, noting that this change was due to the financial circumstances of the parties at the time being insufficient to meet the fees at a private school such as [examples of private schools omitted], and the like. The Tribunal finds that it was only the expectation of [the Appellant] that changed again in 2010, when she decided to enrol [T] at [the F school] beginning in the 2011 school year. [The First Respondent] did not sign an enrolment form. [The First Respondent made it clear to [the Appellant] that he continued to be in a position where he could not afford to contribute to school fees at [the F school]. The Tribunal is satisfied that in posing no opposition to [T] attending [the F school], this does not equate to [the First Respondent] having an expectation that [T] would attend a private school. The Tribunal is also satisfied, given the large discrepancy in fee structure between [the F school] and [the W school], that these two schools, although both of a private nature, do not equate to the same category of education…therefore the Tribunal finds that the ground at subsection 117(2)(b)(ii) was not established.
…
35. …the Tribunal cannot find that the costs of maintaining [T] are significantly affected by the costs incurred when attending a psychologist. … Similarly, the Tribunal cannot find that the costs of maintaining [T] are significantly affected by the costs incurred for her glasses of approximately $150 per annum.
36. … In the Tribunal’s view, there are no facts which lead to the conclusion that the bullying issues faced by [T] should be considered a ‘special need’, nor that [T’s] welfare requires that she attend a private school rather than a non-private school in order to address the bullying issues. The link between where [T] is educated and her social-emotional issues has not been sufficiently established to satisfy the Tribunal that her attendance at [the F school] from the 2011 academic year addressed a special need. Therefore the Tribunal concludes that there are no special circumstances in relation to [T] attending [the F school] which establish a ground under section 117(2)(b)(ia) of the Assessment Act.
…
40. The Tribunal has found above that [the Appellant] has incurred costs to date of $3,182 (being the costs incurred from June 2012 to 24 December 2012) relation to [T’s] orthodontic treatment. In the period 1 January 2013 to 24 December 2013 a further $3,820 will be payable by [the Appellant], after private health fund rebates. The Tribunal considers these costs to significantly affect the costs of maintaining [T]. Therefore, the Tribunal is satisfied that, in the special circumstances of the case, the ground for departure in subparagraph 117(2)(b)(ia) of the Act has been established in relation to the orthodontic needs of [T]. The capacity of each party to contribute to these costs will be discussed later in the decision.
…
73. … While [the First Respondent] is paying off his credit card, car loan and his HECS and SFSS debts, and until recently the Federal Magistrate’s Court debt also, the Tribunal is satisfied that he has limited capacity to contribute to the ‘necessary’ costs of [T] and no capacity to contribute to her orthodontic costs.
The Tribunal set aside the Registrar’s decision and substituted it with the following:
· For the period 1 July 2011 to 30 June 2012 the adjusted taxable income of Mr Devlin is set at $71,362 per annum;
· For the period 1 July 2011 to 30 June 2012 the adjusted taxable income of Ms Dobbins is set at $97,562 per annum;
· For the period 1 July 2012 to 31 October 2013 the adjusted taxable income of Mr Devlin is set at $74,000 per annum; and
· For the period 1 July 2012 to 31 October 2013 the adjusted taxable income of Mr Devlin is set at $69,309 per annum.
Grounds of Appeal
The grounds of appeal were set out in the Amended Notice of Appeal as follows:
1. That the SSAT erred in law by not considering the presumption of shared parental responsibility for education.
2. That the SSAT erred in law by not finding that [the First Respondent’s] contributions to school fees at [the F school] was evidence of intent to attend a private school.
3. That the SSAT erred in law by finding that a parent did not have intent to pay for their children’s education based on the concept of financial capacity.
4. That the SSAT erred in law by finding that the discrepancy in fee structure between [the F school] and [the W school] meant that they do not equate to the same category of education.
5. That the SSAT erred in law by finding that [T] did not have a special need and that special circumstances did not exist.
6. That the SSAT erred in law by not affording procedural fairness in that the SSAT did not advise [the Appellant] that they were intending to deal with a matter in a way that differs from the argument or submissions being made by the parties.
7. That the SSAT erred in law by not affording procedural fairness in that [the Appellant] had not received all the documents provided to the parties.
8. That the SSAT erred in law by considering that, with the exception of entertainment, holidays, gifts, books and magazines of around $68 per week, [the First Respondent]s] expenditure on himself consists mostly of necessary items and did not assess the quantum of his expenses.
9. That the SSAT erred in law by not giving sufficient reasoning for how it came to its conclusions.
10. That the SSAT erred in law by ignoring relevant material and failing to construe properly the legislative provisions applicable.
The orders sought by the Appellant are:
1. That the decision made by the SSAT for Review Number 2012/MC001862 on 20 February 2013 be set aside.
2. That the matter be remitted to the SSAT for re-hearing by a differently constituted tribunal in accordance with the law.
Grounds 1 – 5: [the F school]
The Appellant’s primary complaint is that the SSAT refused to adjust the First Respondent’s assessment to account for a contribution to [T’s] educational expenses in attending [the F school].
Ground 1
The Appellant argues (at para.30 of her submissions filed 14 June 2013) that the SSAT are required to consider ‘the relevant sections of the Family Law Act 1975 in relation to shared parental responsibility’ in determining whether the First Respondent should share in the costs of [T’s] attendance at [the F school].
The Second Respondent submits that ‘[t]he sections of the Family Law Act relied upon by the [Appellant] have no application to the legislative scheme considered and applied by the SSAT in its decision’ see: para.15 of their submissions filed 16 July 2013.
The First Respondent (at para.d(2) of his submissions filed 1 July 2013) states:
d. main contentions
2. The grounds of appeal sought by [the Appellant], 1 through 10 (page 2 Notice of Appeal – amended) do not provide evidence that the SSAT made an error in law for any of grounds 1 through 10. It seems that [the Appellant’s] appeal is based on how the SSAT has viewed, and interpreted the facts provided by both parties, and made its decision therein. As the court does not have jurisdiction in regards to how the facts have been applied, it is clear that there are no grounds for appealing the decision by [the Appellant].
Parental responsibility is defined in s.61B of the Family Law Act 1975 as follows:
61B Meaning of parental responsibility In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61DA requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. Importantly there is a note to the section which makes clear that it relates only to responsibility and not the amount of time that the child spends with each parent. It is also notable that there is no definition within the section precisely explaining the meaning of “equal shared parental responsibility”.
Section 65DAC goes some way to explaining what is meant by sharing “parental responsibility” for a child, making clear that:
65DAC Effect of parenting order that provides for shared parental responsibility
...
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those person:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The operation of the section for a resolution of a deadlock if the parents are not able to jointly exercise parenting power has been little discussed in the cases. In Morgan & Miles [2007] FamCA 1230 Boland J said, in respect of a relocation case:
75. It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
76. If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
77. The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
Watts J concluded in Pavli & Beffa [2013] FamCA 144 that if the parties were not able to make a decision jointly as contemplated by s.65DAC(2) then:
16. The solution to any ultimate impasse between parties who share parental responsibility is for the parties to seek an order about a particular major long-term issue from a court.
In endeavouring to explain the various words used in the Act his Honour went on to say:
17. Although the FLA defines the terms “parental responsibility” and describes what “shared parental responsibility” requires, the phrase “equal shared parental responsibility” is not defined. That is because the word “equal” does not really require further definition. Equal is a word like “unique” or “pregnant”. Something is either equal or it is not equal. As I have said earlier, parental responsibility is defined as all the duties, powers, responsibilities and authority by which, by law, parents have in relation to children. Equal shared parental responsibility means that each parent equally has all of those things.
18. Section 61C FLA provides if there is no contrary court order, each parent has parental responsibility. When that type of equal parental responsibility is exercised, it need not be described as “shared”, as decisions about major long term issues can be made either jointly or independently.
19. “Equal shared parental responsibility” can only be created by court order. The expression “equal shared parental responsibility” is prone to being used loosely when orders are framed. It is important to understand the work that the phrase “equal shared parental responsibility” does in the FLA when considering using those words in an order. The expression only appears in Part VII FLA in ss 61DA, 61DB, 65D and 65DAA. Of those provisions, s 61DA and 65DAA are of most relevance in this discussion.
Loughnan J in Modlin & Anstead and Anor [2013] FamCA 955 also attempted to tackle this lexicological difficulty saying:
202. To take up the point argued in Pavli, in the context of that phrase there is no relevant antonym for “shared”. Meaning could be proposed for phrases such as “unshared parental responsibility”, “several parental responsibility” or “joint parental responsibility”. None of them attract the very precise meaning given to “shared parental responsibility” by the Act and of course none of them could be said to have the opposite meaning to that defined phrase. A safer approach, which I believe would have the desired effect, would be to order that the mother and stepfather have equal shared parental responsibility.
203. “Equal” is a term used in the legislation and presumably does the work of ensuring that those with parental responsibility have identical authority.
In Harris & Duerr [2014] FamCA 127 Forrest J followed the reasoning in Pavli, making clear that if the parents wish to avoid having to come back to court they must make decisions jointly.
The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (at paragraph 30) for the relevant amendment explains the provision intent by saying:
30. The new subsections make clear that where the Act refers to a person having shared parental responsibility for a child, it is a reference to parental responsibility held singularly or jointly with another person. This recognises that when referring to ‘parental responsibility’, not all parents will share all aspects of the duties, responsibilities or authorities associated with parental responsibility, but that they may share a component or components of that responsibility while other components may be the responsibility of one parent only. These subsections are important to clarify the scope of the term.
More recently in Pavli & Beffa [2013] FamCA 144 Watts J summed this up by saying:
4.1 I find that because of the way the words “equal shared parental responsibility” are used in two important sections of the FLA, that expression should only be contained in orders that allocate parental responsibility in relation to making decisions for all, not just some, major long term issues.
4.2 I find that if one party is empowered to make a final decision about any specific major long term issue, the adjective “shared” should not be used to qualify the parental responsibility being allocated.
Thus a reading of the provisions in the context of the Act and the Explanatory Memorandum:
a)Matters which are the subject of orders for “shared parental responsibility”, if they are major long term issues, must be the subject of joint determination by the parties, as required by the subsections. If the parties do not determine these questions jointly, they have no option but to apply to the court.
b)The legislation utilises the adjective “equal” in the phrase “equal shared parental responsibility” when the form of the order is intended to give effect to shared parental responsibility with respect to all matters concerning the child.
If different aspects of parental responsibility are to be dealt with differently then there can be orders with respect to different aspects either for sole parental responsibility (with or without conditions reflecting consultation) or shared parental responsibility with respect to that particular aspect of the parental responsibility the subject of the order.
What the Act does not address in a practical way is the reality that in cases where parties are unable to jointly exercise parental responsibility (for example in the case of choice of school such as the present case), then rather than a party applying to the Court they will often simply breach the order and proceed, and if the other party does not acquiesce they must apply to the Court.
In this sense the Act creates a situation where on a practical level a large number of parents are breaching these provisions of the Act as strictly read, but in circumstances where no action is likely to be taken as the parent would have a reasonable excuse for exercising the power on the basis that some exercise of the power was required (for example sending the child to school) and that they only did so after giving the other parent notice and being unable to reach a joint decision. In this respect the Act calls out for consideration by Parliament if it’s real goal is to provide a transparent regime for orders relating to parental responsibility that is practical and workable in the context of the day-to-day life of most Australian families, where one of the overriding goals of the legislation is to redirect families away from the Courts.
Having identified the relevant sections of the Family Law Act in relation to shared parental responsibility and the meaning of that term, I turn then to consider the argument that the Tribunal in this case erred in failing to consider these sections.
In this case the child was enrolled in a school chosen by the mother. Arguably she breached the provisions of the Family Law Act as this was not a joint decision with the father. However the father acquiesced to the decision.
The father does not seek to bring proceedings under the Family Law Act, not surprisingly given that the mother has enrolled the child and it would be unlikely to be in the child’s best interests for the father to commence proceedings at this point relating to the choice of schooling. How, in these circumstances, the relevant provisions of the Family Law Act could be said to be relevant to the decision the Tribunal had to make is difficult to understand.
I have considered whether the mother’s argument is in effect that the Tribunal should presume that the decision to enrol the child at [F] school was a “joint” decision of the parties, as required by s.65DAC, and then acting upon such a presumption to find that the child is now being educated in a way intended by the parties.
The Family Law Act, however, does not create such a presumption. Whilst s.65DAC provides some protection for those dealing with parents it goes no further than that, saying merely:
…
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
In the circumstances I am not persuaded that in the context of this case the Tribunal was either required to, or they would have gained any assistance from, traversing the complexities of the Family Law Act provisions relating to parental responsibility.
Ground 2
The Appellant submits (at para.32 of her submissions filed 14 June 2013) that the SSAT made an error of law by ‘not considering case law which found that evidence indicating that both parents contributed to school fees is evidence of intention to send to a private school…’. Further, at para.33 of her submissions, the Appellant provides evidence of payments by [the First Respondent] towards [T’s] private school fees for 5 months.
The Second Respondent submits that this ‘ground does not raise any question of law, but invites the Court to engage in impermissible fact-finding’ see: para.17 of their submissions filed 16 July 2013.
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
Primarily this ground seeks to agitate findings on the facts, which is not permissible on an appeal of this type. That is, the inference to be drawn by the Tribunal in respect of any payments towards private school fees by the father.
In the abstract the payment of school fees by a parent is evidence from which it is possible to draw an inference that that parent agreed to the child attending the particular school or being educated in a particular way. However it is not conclusive evidence, it may well be a parent making some contributions once the other parent has embarked upon such a course, even though their preference may be an alternative form of education. For example, parents of different faiths may enrol their child in a faith based school which is different to the faith exercised by the other parent. Payment of fees by that parent does not necessarily mean that educating the child in a faith different to their own is necessarily their choice of schooling arrangements. Such compromises are regularly made between parents in making decisions as to the parenting of their children.
In this case the Tribunal did note contributions made to a private early learning centre by the father (at para.24), in various emails from the father saying if he could afford it any of the schools the mother had mentioned in emails would be good (see para.25). At para.27 the Tribunal identifies an offer to make some contribution towards education at a time when the father says his child support was lower.
It seems to me that the Tribunal has identified sufficient evidence to show that they had regard to matters that it was necessary for them to consider so as not to err as a matter of law (see generally the discussion in MZYTSv Minister for Immigration & Anor [2012] FMCA 1109). I am not persuaded that the Tribunal erred in law in this regard as they considered the evidence generally with respect to this issue before making a finding that was open to them.
Ground 3
The Appellant submits (at para.35 of her submissions filed 14 June 2013) that the SSAT made an error of law by ‘finding that a parent changing their expectation that their child is educated at a private school due to financial reasons is an appropriate reason not to have to contribute’. Further, at para.38 of her submissions, the Appellant provides evidence of the First Respondent’s agreement that ‘T should attend a private school and agreed to contribute. …He then withdrew this consent and did not say he could afford to contribute at all until the change of assessment process was commenced’.
The Second Respondent submits that this ‘ground does not raise any question of law, but invites the Court to engage in impermissible fact-finding’ see: para.17 of their submissions filed 16 July 2013.
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
The simplistic argument of the mother that it is not open to a parent to change their expectations with respect to their child’s education simply due to financial reasons cannot be correct. Throughout life people change their expectations both with respect to their own lives and their children as a result of the resources available to them. As set out in para.30 of the SSAT decision, in this case the expectations of the parents had certainly changed at the time they enrolled the child in a government school due to their circumstances at the time. Whether these changes should be viewed as a temporary change, with the continuing underlying expectations, or a general change in expectations, is a matter of fact for the Tribunal.
In a case where such changes occurred before the parties separated it would be difficult to argue that such changes and expectations were coloured simply by an attempt to avoid or minimise child support. In the circumstances I am not persuaded that the Appellant can succeed on this ground.
Ground 4
The Appellant submits (at para.40 of her submissions filed 14 June 2013) that a difference in fees between schools ‘does not mean that they do not equate to the same category of schooling’. The Appellant refers to the case of Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388 in support but has not provided any pinpoint reference.
The Second Respondent submits (at paras.30-31 of their submissions filed 16 July 2013), that:
30. The [Appellant] invites the Court to engage in impermissible fact finding by asking the Court to review the SSAT’s finding as to whether [the W school] and [the F school] are in different categories of schools. This Court is not concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law…
31. In any event, the Second Respondent submits that a significant difference in fees is a valid distinction to be made when determining the ‘category’ of a school.
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
Many arguments are raised by parents, and in the community generally, with respect to the standards of education offered by various educational institutions. There is no question that as between different schools there may well be significant differences in the standards of education offered, just as there may be significant differences in the extent to which a particular child can benefit from the educational opportunities offered in different styles by different schools. These are difficult questions and largely a matter for the parents.
In the context of child support assessments the focus is upon the contributions to the costs of caring for a child and providing for a child. In this limited context of enquiry the relevance of categorising the school must relate to the cost of the different institutions rather than other aspects of what they offer. If the parents are in dispute as to the choice of school because of qualitative aspects of the institutions then the question is properly one for the Court under the parenting provisions of the Family Law Act. In this sense I find no error on the part of the Tribunal in approaching the categorisation of schools, when the enquiry is for the purpose of financial arrangements between the parties with respect to child support, categorising schools by reference to fee structures.
Of course, if I were reviewing a judgment of a Court or Tribunal dealing with parenting arrangements for the child then the categorisation of schools would necessarily have to be based upon the extent to which they met the particular needs of this particular child. However, this decision is concerned with child support and not the qualitative nature of the institutions. I am therefore not persuaded that the Appellant has established that the Tribunal has erred in this regard.
Ground 5
The Appellant submits (at para.43 of her submissions filed 14 June 2013) that there was no ‘clear rationale as to why the Tribunal found that the socio-emotional issues [T] faces do not constitute a special need’. Further, at para.44 of her submissions, the Appellant argues that by focusing on ‘[T’s] bullying issues rather than her socio-emotional issues’ that the Tribunal ‘focused [on] irrelevant matters’.
The Second Respondent submits (at paras.36-37 of their submissions filed 16 July 2013), that:
36. Specifically, at [36], the SSAT said:
While counselling in relation to her social-emotional issues may have been required, there is no material before the Tribunal which suggests that such assistance could not be provided without [T’s] attendance at [F school].
37. It is therefore apparent that the SSAT expressly had regard to the child’s socio-emotional needs, but found at [36] that the factual circumstances did not give rise to special circumstances for the purposes of s 117(2)(b)(ia) of the Assessment Act.
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
The Tribunal appears to have identified that the child’s social emotional problems and the questions relating to bullying are separate matters, saying:
34. Mr [D] did not dispute the evidence in regard to [T]’s social-emotional problems and the inadequacy of [S] Primary to deal with the bullying.
The Tribunal goes on to discuss both issues in some detail in paragraph 36 saying:
36. In relation to [T]’s attendance at [F], the legislation requires that a “special need” is to be addressed. The Child Support Guide states as follows: “Where a parent has not agreed to the child attending a private school they will not be liable to contribute to the fees unless there are reasons relating to the child’s welfare that mean that the child should attend a private school (and the costs would then relate to the child’s special needs – see reason 2).” As discussed in Blamey v Blamey (1995) FLC 92-554, the term “special needs” is not restricted to medical conditions or disabilities but can include special talents or abilities. In this case, the information from Dr [H] and Dr [M] refers to [T]’s anxiety and a need for improved self assurance and coping strategies to deal with schoolyard bullying, no specific diagnosis is stated. The Tribunal is aware that all Victorian government schools have anti-bullying guidelines, which provide advice on prevention and appropriate responses to bullying. It is not unusual that one public school may not address the issue of bullying as satisfactorily as another, as would also be the case within the private school sector. While counselling in relation to her social-emotional issues may have been required, there is no material evidence before the Tribunal which suggests that such assistance could not be provided without [T]’s attendance at [F]. According to Dr [M], [T] was making an improvement whilst still at [S] Primary while simultaneously attending sessions with her. While Dr [M] suggested that a private school setting would assist with [T]’s needs, she also stated that some of the same issues are still presenting at [F]. The Tribunal acknowledges that there may be circumstances where the education of a child addresses a special need, such as in the context of providing a child with assistance with a particular disability or ability. However, based on the evidence before it, the Tribunal finds that this is not the circumstances of this matter. In the Tribunal’s view, there are no facts which lead to the conclusion that the bullying issues faced by [T] should be considered a ‘special need’, nor that [T]’s welfare requires that she attend a private school rather than a non-private school in order to address the bullying issues. The link between where [T] is educated and her social-emotional issues has not been sufficiently established to satisfy the Tribunal that her attendance at [F] from the 2011 academic year addressed a particular special need. Therefore the Tribunal concludes that there are no special circumstances in relation to [T] attending [F] which establish a ground under section 117(2)(b)(ia) of the Assessment Act.
It appears to me that the Tribunal have identified both social-emotional issues and bullying as questions that were potentially relevant and dealt with them both.
In these circumstances I am not persuaded that the Tribunal focused on irrelevant matters or failed to identify the social-emotional needs as relevant matters for consideration. I do not read the Tribunal’s Reasons as denying the claim that the child may have social-emotional issues, which may amount to a special need, rather that the attendance at the particular school was required to address this special need. Thus the need was not found to be sufficient to establish a special circumstance with respect to child support.
Again, as with the discussion above, the special need may well have been a particular circumstance with respect to this child that required careful parenting orders, however the Tribunal’s focus in a child support hearing was to identify the economic impacts of those needs and whether those economic impacts amounted to a special circumstance under the Act. The Tribunal appears to have done this and reached a decision which appears to me to have been open to them on the material before them. It is not for the Court to review the exercise of the discretion of the fact finding of the Tribunal if they have properly considered the material before them and in the framework of the existing legal Rules.
I therefore find that the Appellant cannot succeed on this ground.
Grounds 6-7: Procedural Fairness
In grounds 6-7 the Appellant complains that the SSAT failed to accord her procedural fairness by:
a)Not advising her that they were intending to deal with a matter in a way that differs from the argument or submissions being made by the parties;
b)Not ensuring that she had all of the documents provided to the parties.
With respect to Ground 7, the First Respondent (at para.d(1) of his submissions filed 1 July 2013) states:
d. main contentions
1. In regards to point 7 (page 2 Notice of Appeal – amended), ‘The SSAT erred in law by not affording procedural fairness in that [the Appellant] had not received all the documents provided to the parties’. While I cannot say whether or when [the Appellant] received these documents, it is my recollection that [the Appellant] was in agreement to the hearing still proceeding, and that [the Tribunal member] referenced the documents in the hearing and the hearing proceeded. Her agreement to continue the hearing, and the fact that the decision was made, does not imply that the SSAT erred in law but simply [the Appellant] is looking for another reason to appeal the decision.
With respect to Ground 6, the Second Respondent submits, in their submissions filed 16 July 2013, that:
46. The SSAT stands in the shoes of the Child Support Registrar and is empowered to make any determination the Child Support Registrar could make under s 98S of the Assessment Act. That includes setting or varying a parent’s self-support amount: s.98S(1)(i).
47. In Eades v Cadell [2009] FMCAfam 275 (Eades v Cadell), Slack FM (as he then was), said, at [29] that:
The SSAT was entitled to consider, as the Act requires, under a separate heading, the expenses for the respondent that should be taken into account to determine his capacity to meet his child support obligations.
…
49. The evidence about the First Respondent’s self-support expenses was before the SSAT and the Applicant. The Applicant had opportunity to comment on that evidence.
…
51. In the alternative, the Second Respondent also submits that without the transcript of the SSAT hearing the Applicant is unable to independently establish any evidence that would suggest that the Tribunal acted in a way that may demonstrate that there was a denial of procedural fairness.
With respect to Ground 7, the Second Respondent relies on the First Respondent’s recollections of the hearing and states further that it:
54. … otherwise relies on the decision of Riethmuller J in Hallam v Judd & Anor (SSAT Appeal) [2013] FCCA 325, at [23] to [31], and submits that the statutory assumption that the Applicant received the documents has not been rebutted.
The Appellant expands upon this ground in her affidavit where she says that the Tribunal calculated necessary expenses for the respondent father in a sum greater than the self-support component provided by the child support formula. She says that she had no notice of this and therefore was denied procedural fairness. She relies upon the decision of Crowell & Bodrey(SSAT Appeal) [2011] FMCAfam 275 where the Judge dealt with a review where the Tribunal dealt with an issue that the Appellant had not sought a review of before the Tribunal.
In any case before the Tribunal under these provisions the Tribunal is required, if a special circumstance is established, to consider the real income and expenses of the parties and not simply rely upon the formula to do so. The very purpose of a review is to depart from the formula which provides figures that the Government has set as appropriate averages or indicators, and returned to an assessment based upon the unique facts of the case before it.
In this case it does not appear to me to have been incumbent on the Tribunal to specifically raise with the parties this part of its function, the parties are before it for the purposes of obtaining a bespoke assessment of child support rather than a formula one. In this regard I am not satisfied that the Appellant has made out this ground.
The second part of this argument relates to a claim that the Appellant did not receive documents which were relied upon by the Tribunal in making their decision. It is important to identify the particular documents that the ground relates to. The Appellant identifies them as pages 309 to 351 of the Court Book provided by the Tribunal. None of these are documents provided to the Tribunal by the Appellant or the Respondents. The first section of the documents is the screen shots of the assessment as between the Appellant and another person to whom he pays child support. To the extent that there is anything in these documents which would not have already been known to the parties, it does not appear to me to be relevant (for example confidential contact information for the parties or the payment history screens). The relevant information is what the father pays for another child. This was not a review of the other assessment, nor did it involve claims that the other assessment was a ruse of some form. The balance of the documents are copies of the letters sent to the parties both with respect to this case and another case, which the father is assessed, falling within a similar category.
The question arises as to the extent to which there is relevance in this information which would have been provided as a matter of course between the agency and the Tribunal to enable them to understand the current assessment. The child support actually paid by the father with respect to other children is a relevant consideration that had to be taken into account. Details of how that assessment was calculated does not appear to me to be directly relevant in this case, and would result in considerable private information of another person being provided to the Appellant in this case if it were disclosed.
In the context of this particular case I am not persuaded that there was a failure to accord the Appellant procedural fairness in failing to disclose that information as part of the hearing process in this case.
Ground 8: the First Respondent’s expenditure
In this ground the appellant complains that, in calculating the First Respondent’s self-support amount, the SSAT have erred ‘because they have included costs that are not reasonable in type and quantum, not necessary, have not ensured they are accurate and not in line with the Child Support Guide or case law.’
The Second Respondent submits that the SSAT followed the approach set out by Slack FM (as he then was) at para 34 of Eades v Caddell [2009] FMCAfam 275 (see: paras.56-57 of their submissions filed 16 July 2013).
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
The Tribunal in this case has tabulated the income and claimed “necessary” costs of self-support as estimated by the father and the estimated weekly child support payable in para.79 of their decision.
I do not read their decision as accepting that all of those expenses were “necessary” within the meaning of the legislation. For example at para.78, dot point 2 the Tribunal identifies that estimated expenses for the child are greater than costs estimated in the costs of children tables but conclude that it is open to the parents to prioritise their “necessary” costs of the child in line with their capacity to finance such discretionary activities. At dot point 3 in the same paragraph the Tribunal notes that both parties have estimated costs of self-support which are “significantly higher than the self-support amount used in the administrative formula”. The Tribunal goes on to say that “It is open to both parties to reduce their discretionary spending in order to meet the necessary and/or discretionary costs” of the child.
At paragraph 81 the Tribunal go on to note:
81. If the above table were to use the self support amount from the formula for ‘necessary’ costs of Mr [D] in addition to his commitments to repay his liabilities, the result is a weekly surplus after child support in every instance, thereby highlighting the possibility of Mr [D] prioritising his ‘necessary’ expenses and reducing his discretionary expenditure in order to meet his child support liability for [T].
It is only after these considerations that the Tribunal strikes a figure in para.82, and importantly, noting that the Tribunal “is satisfied that [the father] has the capacity to arrange his finances to enable him to meet the child support liability resulting from the proposed departure determination”.
In the circumstances I am not persuaded that the Tribunal have erred by including unnecessary costs in the amounts they have estimated for the expenditure for the father.
Grounds 9
In this ground the Appellant complains that the SSAT ‘failed to give sufficient reasoning for how it came to its conclusions.
The Second Respondent relies on my decision in PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829 at [43], which states:
43. On the face of the decision of the SSAT, it appears that the SSAT did not consider that the rate of child support for the period before 15 January 2007 was an issue before the Tribunal. Whilst the statement of the Tribunal is strong evidence of the issues being considered, I bear in mind the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 that:
[31] ... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
The Appellant’s complaint under this ground relates to the reasons and conclusions that the Tribunal gave with respect to the child’s attendance at a private school (see para.76 of her affidavit). I accept that sufficient reasons must be given to show that the decision maker has engaged with the main arguments and significant evidence in the case and to explain the decision that they have reached. However, it seems plain from a reading of the decision that the Tribunal have traversed the significant pieces of evidence and have clearly addressed the issues relating to private school expenses in this case, as is apparent from the quotes set out above.
I am not persuaded that the Appellant has established a ground of review in this regard.
Grounds 10
In this ground the Appellant complains that:
68. …the decision does not consider the legal principles involved in the majority of the cases identified or state how the case law is or isn’t relevant.
…
73. In addition in relation to [T] attending a private school a significant amount of the evidence I have put forward has been ignored in the assessment of the evidence and the decision itself. The Tribunal has ignored all the evidence that shows [the First Respondent] agreed to [T] attending a private school whilst trying to put forward the argument that [the First Respondent] never agreed because he could not afford to contribute to [T’s] schooling at all. …
The Second Respondent submits that the substance of this ground is ‘covered by the preceding grounds, and in particular Ground 2, 3 and 4.’
The First Respondent relies upon his previous submission (see para.12 above) that there is no error of law and therefore the Court does not have jurisdiction.
This ground seems to be as a catch all ground for the matters set out above. A reading of the decision of the Tribunal indicates that the Tribunal did identify the main legislative principles and the explanations or statements of law from key cases in determining the case before them. The Appellant has not identified any particular error of law on the part of the Tribunal.
Unfortunately for the Appellant what she appears to be seeking is a merits review of the decision rather than pointing to an error of law as is required by the legislation. In these circumstances I do not find that she has established this ground.
Conclusion
As a result of my findings with respect to each of the grounds the appeal must therefore be dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 20 June 2014
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