DRAPER & DRAPER (SSAT APPEAL) - [2010] FMCAfam 1020

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRAPER & DRAPER (SSAT APPEAL)

[2010] FMCAfam 1020

CHILD SUPPORT – Appeal from Decision of Social Security Appeals Tribunal – whether error in the determination of financial circumstances of respondent – timing of the decision.

Child Support (Registration and Collection) Act 1988
Child Support (Assessment) Act 1989
Social Security (Administration) Act 1999

Tyagi & Meares (SSAT Appeal) (2008) 39 Fam LR 604
LDME & JMA (SSAT Appeal) [2007] FMCAfam 712
Hides & Hatton (1997) FLCA92-759

Applicant:

MR DRAPER

Respondent:

MS DRAPER

File Number:

BRC 3326 of 2010

Judgment of:

Slack FM

Hearing date:

30 August 2010

Date of Last Submission:

30 August 2010

Delivered at:

Brisbane

Delivered on:

29 September 2010

REPRESENTATION

The Applicant appeared on his own behalf.

The Respondent appeared on her own behalf.

ORDERS

That the Appeal from the Decision of the Social Security Appeals Tribunal dated 10 March 2010 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT brisbane

BRC 3326 of 2010

MR DRAPER

Applicant

And

MS DRAPER

Respondent

REASONS FOR JUDGMENT

This is an appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 10 March 2010.
The applicant (representing himself) has particularised a number of Grounds of Appeal as to the errors in law that he claims were made by the SSAT.
His Grounds of Appeal, in summary, are as follows:
a)That the SSAT erred in failing to determine the application for change of administrative assessment as and from 1 January 2009.
b)That in determining that for the period 1 January to 31 December 2010 Mr Draper’s child support liability is reduced by $3,123 the SSAT as a matter of law failed to take into account his continuing obligation to provide support for his other child [X] (who turned 18 in 2009).
c)That the SSAT erred in the way it applied s.117(7A)(b)(i) of the Child Support (Administrative Assessment) Act (hereafter the “Assessment Act”) and the manner in which it dealt with the property and/or resources of the respondent. In particular:
i)that the SSAT erred in its finding that the respondent had an income of nil;
ii)that the SSAT erred in its finding that the respondent did not have financial resources that could be applied to her child support obligations;
iii)that the respondent had a capacity for employment and the applicant was not given a proper opportunity to address some of the evidence placed before the SSAT by the respondent.

Decision of the SSAT

The SSAT in hearing an application for departure from administrative assessment varied the objection decision under review and determined:
1.     Mr Draper’s adjustable taxable income is set at $160,000 per annum from 24 June 2009 to 31 December 2010.
2.     For the period 24 June to 31 December 2009 Mr Draper’s child support liability is reduced by $11,854 per annum.
3.     For the period 1 January to 31 December 2010 Mr Draper’s child support liability is reduced by $3,123.
There appears to be no challenge to the application of principles by the SSAT in the determination of the application.
The SSAT concluded that a ground for departure did exist under s.117(2B)(1A). The ground for departure was based on the private school fees being incurred for the children.
Neither the applicant nor the respondent challenged the finding that special circumstances existed to found a ground for departure.
Having determined that special circumstances existed for a ground of departure, the SSAT then went on to consider whether it was just and equitable to depart from the administrative assessment and otherwise proper.
Relevantly in considering whether it was just and equitable to depart from the administrative assessment, the SSAT made findings about the income of the applicant. He does not dispute those findings.
The SSAT also made a number of findings of fact in relation to the respondent’s financial circumstances and in that, it is clear that they considered the arguments raised by the applicant, namely:
i.      That she had applied or transferred her property and/or resources to her new partner thereby divesting herself of a capacity to support the children.
ii.     That she was earning an income by working in her partner’s [business].
iii.     That she in any event had a capacity to earn.
Relevant to this appeal, the SSAT made the following findings:
The Tribunal concludes accordingly that Ms Draper did not have an income resource for child support purposes following the sale of the [B] property (para 33 of the Reasons).
The Tribunal accepts that Ms Draper has not worked in Mr M’s [business] in the period from early 2007 to the present (para.35 of the Reasons).
The SSAT accepted the evidence the respondent supplied in a memorandum from Dr W dated 23 February 2010 that:
I can confirm that Ms Draper is totally unfit for any full-time or part-time employment or study due to the severity of the depressive disorder (para.39 of the Reasons).
Those were findings of fact made by the SSAT.
I do not have a transcript of the proceedings before the SSAT. It would appear though, having regard to the reasons, that the SSAT were aware of the arguments put by the applicant in relation to the respondent’s financial circumstances. It would also appear that in relation to those issues raised by the applicant that the SSAT considered the evidence and made findings of fact. I can find no error in the fact finding task as undertaken by the SSAT.
It would appear that the respondent relied upon a letter from her doctor upon which the SSAT placed some weight. It also appears that letter was placed before the SSAT at a time when the applicant was not there. However, the applicant by his own admission left the hearing to attend to other things. Whilst I have some concerns about the fact that he was not given an opportunity to challenge or make submissions regarding the Doctor’s report, I am otherwise satisfied there was other evidence for them to reach that conclusion.
It is important to remember that the SSAT was assessing the child support for the 2009/2010 years. The respondent’s evidence, which the SSAT seemed to accept, was that she had not worked in paid employment for a significant number of years and that she was suffering from severe depression. I am not aware that there was any evidence to the contrary.
I consider that the SSAT was entitled to reach the conclusion that it did about the respondent’s capacity to earn without the Doctor’s report.
The SSAT were then faced with the situation where the applicant had an income approximating $160,000 per annum and the respondent had no income and no immediate identifiable property or resources.
I adopt the comments of FM Riethmuller in Tyagi & Meares (SSAT Appeal) (2008) 39 FAMLR 604:
The fact that both parties have a duty to meet their children’s needs does not mean that the duty must be discharged equally. It is to use the common law phrase, “joint and several liability”; if one party has no financial resources, the other must meet the whole of the children’s financial needs. Indeed, in many cases, the differences in income of the parties (often impacted on the need to care for children) means that one parent simply does not have the income to meet half of the children’s financial needs, and thus those needs must be apportioned having regard to the financial capacity of the parents.
In this case, the SSAT did conclude that it was appropriate for the respondent to contribute to half of the school fees but they made that determination in the light of their findings about her financial circumstances (already discussed).
In those circumstances I am not satisfied that the conclusion reached by the SSAT was incorrect.
In this matter I am satisfied that the SSAT addressed all of the relevant statutory provisions in the consideration of this application; considered the arguments of the applicant, in particular as they related to the respondent’s financial circumstances; and made findings of fact (as they were entitled to do) based on those considerations
It is important to remember the discussion of FM Halligan in LDME & JMA (SSAT Appeal) (2007) FMCAfam 712:
The SSAT is an administrative tribunal, not a Court of law, and is bound to pursue the objective providing a mechanism of review that is fair, just, economical, informal and quick (s.88, Registration Act and compare s.141, Social Security (Administration) Act 1999) It is not afforded the luxury of lengthy deliberation on the reasons for its decisions, but must give the parties written notice of its decision on the review and written or oral reasons for that decision within 14 days of making the decision (s.103X, Registration Act). The function of the SSAT is not to deliver judgments of jurisprudential excellence when delivering its reasons. In my view, therefore, the above authorities apply to a s.110B appeal, and the court reviewing the reasons for decision of the SSAT in such an appeal to discern legal error should not adopt an overly pedantic approach.

Ground 1 of the Appeal – Date for commencement of the time period of the decision 1 January 2009 in lieu of 1 July 2009

In his Application Form : Changing your Child Support Assessment in Special Circumstances (page 395 of the s.110K documents), the applicant made it clear he was seeking a change of assessment for the period from 1 December 2008 to 1 January 2010.
In Hides & Hatton (1997) FLCA92-759, the Full Court of the Family Court said (@ 84 354) that under the Assessment Act:
There would seem to be no time limitation in the making of an assessment (or at least an amended assessment) by the agency for a past year; nor an application for a review by Child Support Review Officer of an assessment (be it original or amended) for a past year; nor an application to, and determination by, a Court for an order departing from an administrative assessment for a past year. Furthermore, s.141(1)(h) would seem expressly to empower the making of a departure order which has retrospective effect and this power has been recognised by the Full Court in Bassingthwaite & Leane (1993) FLC92-410.
Relevantly though s.98S (3B) of the Assessment Act now provides that the Registrar has no power to make a determination under Part 6A for a day that is more than 18 months earlier than the day on which the application for the determination is made (unless leave has been granted by a Court pursuant to s.111 of the Assessment Act).
It seems that when the applicant made his application, he was entitled, without leave of a Court under the Assessment Act, to seek a departure from the child support assessment for the 18 months prior to the filing of his application and that the Registrar had the power to deal with his application pursuant to Part 6A of the Assessment Act.
As was made clear in Hides & Hatton (supra):
The jurisdiction to make an order under s.117 departing from an administrative assessment of child support is a discretionary jurisdiction. But as was made clear by the Full Court in Gyselman & Gyselman (1992) FLC92-279, it is a highly structured discretion with the Court being required to adhere to the following strict three step process…..
It is clear, having regard to Hides & Hatton (supra), that in the exercise of the discretion according to the statutory imperatives, that the SSAT under s.117(4) and s.117(5) can have regard to the impact on the payer or the payee of the making of a departure order setting liability for a past period and thus immediately creating the burden of arrears for the payer or a credit for the payee [the Court being able under s.117(9)] to have regard to matters beyond those specified in s.117(4) and s.117(5). These may also be matters which could be addressed under s.117(2)(c) when considering whether a ground for departure exists in a particular case.
The SSAT concluded (see para 60):
The parties should contribute equally to the children’s school fees in the 2009 calendar year ($23,707). Deducting half from

Mr Draper’s child support liability will have the significant impact of reducing Ms Draper’s child support by just over one half until 2 November 2009. Due to this impact the Tribunal considers it fair to give effect to this proposal from 24 June 2009 when Mr Draper lodged his change of assessment application. The Tribunal’s aim here is to balance the impact on the parties and the proposed commencement date recognises that Mr Draper is well aware of the change of assessment process and could have elected to lodge his application close to the expiry of the Senior Case Officer W prior departure determination.
Whilst I have some concerns about the approach of the SSAT to this particular issue and there is little discussion in the reasons for reaching the conclusion it did on this point, nevertheless it seems:
a)the SSAT did consider the application to depart as and from January 2009;
b)the SSAT did consider as it was entitled to do the impact of a retrospective determination upon the parties (in this case the respondent);
c)given the findings made by the SSAT about the relative financial circumstances of the parties, I am not satisfied that the decision is attendant with such error as to warrant the decision being set aside.

Ground 2 of the Appeal

In relation to Ground 2 of the appeal, the SSAT found (para 61):
In relation to the 2010 calendar year and particularly following [X]’s 18^th birthday, the Tribunal is satisfied that Mr Draper is financially able to pay 75% of [Y]’s school fees ($12,492) without hardship.
The applicant argues that the SSAT failed to take into consideration the ongoing expenses he would continue to have for his son.
The issue for the SSAT was what was an appropriate level of child support for the eligible child. I can accept that the SSAT could, in certain circumstances, take into account the ongoing commitments of a payer to an adult child.
In this matter however the SSAT did take into account the costs of the applicant maintaining his son during 2009 when he was an eligible child and the SSAT did not adjust the child support assessment for the 2010 year other than to change the level of the school fees payable by the applicant. There would have been a reduction in the level of child support payable by the applicant when the eldest child ceased to be an eligible child. I also note that one of the claimed expenses for the child is his tertiary education fees which are discretionary in the sense that those fees can be paid via HECS.
I am not satisfied that that decision of the SSAT is attendant with such error as to warrant interference with the decision by this Court.

Ground 3 of the Appeal - the SSAT dealing with the respondent’s income, capacity to earn and property and financial resources

To a large extent I have discussed the various arguments raised by the applicant on these various grounds.
In summary I am not satisfied that the applicant has established any error of law that would warrant the decision being set aside.
The SSAT was dealing with two child support years. It was clear that the respondent had not worked in paid employment for many years. The question about her working in her partner’s business was a question of fact and the SSAT accepted her evidence about those facts.
In relation to her earning capacity, the evidence from her Doctor was corroborative of her own evidence and the SSAT accepted that evidence. Whilst I have concerns about the manner in which the evidence from the Doctor was dealt with and in particular that the applicant was not given an opportunity to respond, I am not satisfied that there was such procedural error that would warrant the decision being set aside and in coming to that conclusion, I take into account that the applicant left the hearing early and there was other evidence that supported the respondent’s evidence. This was not a finding that the respondent cannot work in the future. It was a finding that she had no earning capacity in the relevant child support years that were under consideration.
As for the question of her financial, property or other resources, the SSAT made findings of fact and I cannot discern a basis upon which it could be said that the SSAT was not entitled to reach those conclusions.
I am not satisfied that there was an error of law in this matter and the appeal is therefore dismissed.

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

Date: 29 September 2010