Eagle and Eagle and Anor (SSAT Appeal)
[2012] FMCAfam 463
•28 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EAGLE & EAGLE and ANOR (SSAT APPEAL) | [2012] FMCAfam 463 |
| CHILD SUPPORT – Appeal – errors of law alleged – no errors found. |
| Child Support (Assessment) Act 1989, ss.80, 117 Child Support (Regulation & Collection) Act 1988, ss.103X, 110B, 110F |
| Associated Provincial Picture Houses v Wendesbury Corporation [1947] 1KB 223 Hartnett v Migration Agents Registration Authority [2004] FCA 50 Australia Securities and Investments Commission v Saxvy Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649 Hill v Repatriation Commission (2005) 85 ALD 1 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 |
| Applicant: | MR EAGLE |
| First Respondent: | MS EAGLE |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 1492 of 2009 |
| Judgment of: | Coates FM |
| Hearing date: | 16 December 2011 |
| Date of Last Submission: | 24 January 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 28 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the First Respondent: | Self represented |
| Solicitors for the Second Respondent: | Child Support Registrar |
ORDERS
That the Notice of Appeal (Child Support) filed 14 November 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Eagle & Eagle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1492 of 2009
| MR EAGLE |
Applicant
And
| MS EAGLE |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
This is an appeal against a decision of the Social Securities Appeal Tribunal (the Tribunal).
Section 110B of the Child Support (Regulation & Collection) Act 1988 (the Act) states the only ground of an appeal is upon a question of law.
The appellant set out the following as his grounds of appeal:
“1. The decision of the Tribunal was unreasonable, as no tribunal could have reasonably reached the decision made, having properly considered the available evidence.
2. The decision of the Tribunal is based upon findings for which there was no evidence.
3. The decision of the Tribunal fails to give a proper consideration and weigh to evidence available to it.
4. The Tribunal failed in its duty to conduct proceedings in accordance with procedural fairness.
5. The Tribunal acted in a manner which gave rise to a bias – perceived and actual.
6. The decision of the Tribunal is not just and equitable as between the Appellant and the respondent.”
Further, the appellant sought five orders, being:
“1. The decision of the Tribunal for the appellant to pay half of the annual private school fees for children; X and Y be stayed until further order of the court.
2. The decision of the Tribunal for the appellant to pay half of the annual private school fees for children; X, Z and Y be set aside.
3. Monies paid to the Respondent pursuant to Child Support Agency assessment and decision of the Tribunal, be refunded to the Applicant or in the alternative Credit against future child support liability.
4. In the alternative to 2, 3 the order of the Tribunal be varied to direct Ms Eagle to apply for the Special Fee Concessions at the schools at which X, Z and Y attend.
5. In the alternative to 2, 3 the order of the Tribunal be varied to allow the applicant to pay that portion of Child support comprising school fees directly to the schools at which X, Z and Y attend.”
There is also a stay application sought to be applied to half the annual private school fees. It is linked to this appeal.
Ms S. for the Child Support Registrar indicated that draft orders 3, 4 and 5 were beyond power and in the applicant’s submission I was told they were not. He gave no proper submission as to why the orders would be within power.
Section 110F of the Act states the powers of the court on such an appeal.
It states:
“s.110F Powers of courts
(1) The court must hear and determine an appeal under this Subdivision and may make such order as it thinks appropriate by reason of its decision.
(2) Without limiting subsection (1), the orders that may be made by the court on an appeal include:
(a) an order affirming or setting aside the decision of the SSAT; or
(b) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the SSAT in accordance with the directions of the court.”
On a reading of the section, it may appear that I have the power to make orders 3, 4 and 5, because of the wording that the court “may make such order as it thinks appropriate”, however the power I have only is in relation to the child support acts and I see no section or power allowing an order for a refund, or that the wife apply for school concessions or that there be a variation to allow school fees to be part of child support payments, in the circumstances of this appeal. Whether I have such a power, which is doubted, or whether the Child Support Agency has an administrative power to make amendments to the appellant’s child support as he seeks by draft orders 3, 4 and 5, is a matter he must take up with the Child Support Agency.
It follows that I accept the submission of Ms S. that draft orders 3, 4 and 5 as sought by the appellant are not within power.
BACKGROUND
The Tribunal’s decision refers to the relevant background applicable to three children born (omitted) 1995, (omitted) 1998, and (omitted) 2001, that:
a) The parents separated in 2007;
b) The children live with the mother and otherwise spend 39 percent of the time with the father;
c) The mother lodged a departure application with the Child Support Agency on 15 December 2010;
d) The application was successful thereby increasing the father’s child support;
e) His objection was only partially successful;
f) The Tribunal heard the father’s review on 23 September 2011.
The review by the Tribunal related to private school expenses, being calculated by the objections officer at $11,816 for the year 2011, the appellant father claiming that he did not expect the children to be educated privately and that such was a decision of the respondent mother. The Tribunal found that the decision for private schooling was a decision of his and thus an expectation of the parents jointly. That part of the decision was not challenged.
THE SUBSTANTIVE ISSUE
The decision of the Tribunal was despatched to the parties on 12 October 2011.
One of the difficulties with the case was that the appellant was not represented and had not provided a transcript of the proceedings before the Tribunal and upon my numerous offers to give him an adjournment, he still wished to proceed without obtaining a transcript. Adjournment was also offered when Ms S., for the Registrar could not understand or determine the questions of law. The appellant declined the offers, stating he had received legal advice. So much was clear because the application was framed in terms of stating errors of law. Both litigants also filed affidavit material stating new facts. I explained that I cannot rely on new facts as this was an appeal going to errors of law. I also explained I would rely on the appellant’s affidavit only as submissions on what he claimed were errors of law.
GROUND ONE
As to the first ground – unreasonableness – the appellant’s argument is that the Tribunal mistook his taxable income. He claimed in submissions that on the Tribunal’s calculations, he was spending $524 more than he actually earns annually. As I understood his submissions, he seemed to be stating that the Tribunal looked at gross figures, not net figures, which would appear to be the case from a reading of paragraph 14 of the decision, which states:
“Mr Eagle is employed as an (occupation omitted) by the (omitted). His taxable income for the last three years to 2010/11 have been $68,587, $74,535 and $76,322. His income is fairly represented by his taxable income.”
However, that ignores the lack of financial information given by the appellant to the Tribunal, which is noted in paragraph 16 of the decision, wherein he did not apportion his expenditure claiming that would be difficult and artificial, although he listed household expenses. It also ignores all of the references to evidence throughout the decision, going to factors stated in s.117 of the Child Support (Assessment) Act 1989.
Further, it ignores the respondent wife’s submission that the Tribunal in fact had the appellant’s pay slips which he had supplied and so knew what the after-tax income was.
It was her case that the appellant’s submission was quite mistaken although those were not her words.
In assisting the court, Ms S. for the Registrar submitted that the unreasonableness was not the unreasonableness identified and known as the Wednesbury unreasonableness.
That refers to a decision so unreasonable or so outrageous that no reasonable decision maker would make such a decision, see Associated Provincial Picture Houses v Wendesbury Corporation [1947] 1KB 223.
She said this test had a high threshold in deciding that a decision was so unreasonable that no reasonable decision maker could make such.
She said what had been identified was really a question of fact on evidence before the Tribunal. She said it was settled that a mere question of fact does not amount to a question of law.
It appears to me that on a reading of the decision, the Tribunal had the appellant’s pay slips and relevant earnings information for the periods in question. That must include, as the wife states, net wages and at paragraph 14, the decision states that his income was fairly represented by his taxable income, that is, his gross income. Without a transcript, it is impossible for the appellant to show how any unreasonable decision occurred, because he cannot show me what the questioning went to or the submissions made. Against his claim I have the decision, which on its face, states and determines the income situation.
On that basis, the Tribunal made a decision on a question of fact. Even if, as is claimed, the Tribunal mistakenly examined the gross and not the net figures, such would not invalidate the decision, as a mistake of fact is not a mistake of law. I accept Ms S.’s submission as to the application of the law in this circumstance see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at 50 per Marshall J; Australia Securities and Investments Commission v Saxvy Bridge Financial Planning Pty Ltd (2003) 47 ACSR 649 at 46 per Branson J and Hill v Repatriation Commission (2005) 85 ALD 1 at 92 to 93 per Wilcox, French and Wienberg JJ.
No error of law is made out.
GROUND 2
As to the Tribunal making decisions based upon no evidence, the appellant submitted that at paragraph 32 of the decision the Tribunal found that it was not persuaded that he was in financial hardship, although there were $11,000 owed in school fees.
He said that there was just no evidence to make that finding.
His argument seemed to be that because there was a statement in the decision that neither party had given sufficient evidence of household expenditure, the finding at paragraph 32 that the appellant was not in financial hardship was not based on evidence.
He said the error of law was that the Tribunal did not give proper weight to the evidence available to it, and the evidence it had before it were financial statements. At that stage the appellant gave me figures based on his net income. He also claimed in submission that he was not legally represented before the Tribunal. In written submissions he said he was denied procedural fairness by not being alerted to his rights to adjourn the matter for a telephone hearing to gather additional information which was required by the Tribunal, which also seemed to be linked to the fourth ground of appeal.
The submission is not based on what occurred. There was no additional information required by the Tribunal and no adjournment was required for such to be given.
Further, the wife said there were 900 pages of material before the Tribunal and even if that was not persuasive she referred me to paragraph 26 of the decision which stated:
“26. Both parents acknowledged that they had not completed the statement of financial circumstances in a way that would allow the Tribunal to calculate the costs of the children. They both agreed that the children’s expenses, apart from the school fees, were unremarkable for children of their ages.”
As I understood the appellant’s submission it was to the effect that the Tribunal made a decision without all the evidence before it.
Ms S., for the Registrar, pointed out that the claim that there was no evidence to base the findings on would amount to a question of law. She referred me to paragraphs 14 to 21 of the decision, which on my reading does refer to the appellant’s wages, care of his wife’s son from a previous relationship, lack of apportioning financial details in his financial circumstances statement, estimates of household expenditure, his wife’s and her son’s expenses, the receiving by his wife of a family tax benefit for her son and that he was up to date with child support payments.
On reading those paragraphs and considering the submissions of the parties I find there was evidence to support the findings and that there was no error of law as claimed. In fact, paragraph 17 specifically refers to a factual issue which occurred during the Tribunal hearing, where the appellant agreed that some of his claimed expenses were too high, such as for internet and insurance. The Tribunal’s obligation under s.103X(3) is to refer to the evidence upon which it makes its decision. That is what has occurred here. It is remarkable that with so many pages of documents before it, which could obviously complicate the considerations, the Tribunal has been able to reduce this child support matter to succinct, comprehensive terms, with enough detail to understand what has occurred.
The appellant also claimed a denial of procedural fairness, also recognised by Ms S. as an error of law. She referred to the directions given and highlighted paragraph16 of the decision, whereby the parties were directed to supply the material they were to rely on. They supplied what they intended and did rely on. There was no complaint of the parties at the time of the Tribunal’s hearing that there was more information to be supplied about their financial details. I agree with Ms S. that without a transcript of the proceedings, the appellant cannot establish a lack of procedural fairness in the actual oral conduct of the matter.
As to lack of legal representation, another claim, that is not a fact which vitiates the decision in any way. The claim is that the Tribunal did not inform the appellant, as it was bound to do, that it required further information. That may depend on circumstances, but without a transcript in circumstances where I specifically asked if an adjournment was sought to obtain the transcript, it is not open for consideration.
No error of law is made out.
GROUND 3
As to ground three, the Tribunal not giving proper consideration and weight to the evidence, the appellant said he had his financial statement attached to his affidavit at annexures 2 and 3 and that he had a take home income of $59,000 and it would be apparent, had the Tribunal added the figures, that he could not afford the school fees.
The wife’s submissions were merely against the appellant’s submissions.
Ms S. submitted that the appellant seemed to be stating that the error of law occurred because the Tribunal failed to take into account the he could not get a loan and failed to find an exact amount owing on school fees.
She submitted that these were considerations of factual situations and determinations of weight, not issues of law.
This is a correct statement of the application of administrative law principles in my view. I was referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 per Mason J, where this is not a review of the merits of the case.
No error of law is made out.
GROUNDS 4 and 5
The claim (ground 5) is that the Tribunal did not conduct the hearing so that the appellant was afforded procedural fairness.
If correct, this would be an error of law.
I have already stated that the appellant made reference to this at ground two, the reference coming in his written submissions, which I allowed so as to increase his opportunity to put his case before the court.
This was a general catch-all ground in my view, with the appellant returning to the theme that he was not legally represented, with the issue that the Tribunal had formed a view where it required further evidence but without affording him the opportunity of gathering such evidence.
I was not satisfied that the Tribunal formed the view it required further evidence. It gave the parties a direction to file a statement of financial circumstances, and it was up to the parties to comply with the requirements of such. Paragraph 16 of the decision goes specifically to the circumstances of the appellant’s statement and his attitude of not apportioning expenses and stating it would be “difficult and somewhat artificial.” In applying the objects of the child supports acts, to ensure parents support their children, the onus was on the appellant, to make the appropriate financial information available, not on the Tribunal to chase him for information.
It is apparent to me then that the appellant linked this ground with his allegation of bias, ground 5 of the Appeal.
On reading his written submissions, the appellant is stating that paragraphs 18, 19 and 20 of the decision show a lack of procedural fairness when the Tribunal arrived at the statement in paragraph 20 that “the Tribunal has not been provided with a complete picture of the household’s income”.
Ms S. for the Registrar referred the court to Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 5, by Gaudron and McHugh JJ – that there must be a “reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her”.
It is at this point that the Tribunal’s role must necessarily be restated. Pursuant to s.80 of the Act, the Tribunal conducts reviews of child support determinations where by it “…must pursue the objective of providing a mechanism of review that is fair, just economical, informal and quick.”
The Act sets down the procedures to be followed and importantly, at s.103X(3), in a written decision, it must set out the decisions, the findings on material facts and refer to evidence or material upon which factual findings are based.
In my view, the decision of the Tribunal in this matter does exactly what is required of it under the legislation. It is not required to determine that because a person does not supply all of the necessary information, that an adjournment to obtain more information is necessitated.
There was no lack of procedural fairness as the decision states what it must under s.103X(3) and there was no bias. Although the appellant referred to this alleged bias being shown towards the respondent mother who also did not list certain expenditure, referred to at paragraph 26, what he must do is show how such bias is evidenced. It is not enough merely to say that his failure to disclose ought be treated in the same manner as that of the mother, which in effect is only a decision of facts by the Tribunal. That the appellant positively decided not to put a transcript of the proceeding before the court also precluded him from referring to statements of the panel which could be analysed for bias as outlined in Laws v Australian Broadcasting Tribunal. To claim that this was a material fact is just not supported by the evidence the appellant has put before the court.
No error of law is made out.
GROUND 6
On this ground the Appellant claims that the decision lacks justness and equity.
He says the Tribunal did not consider the needs of the children, the commitment of the parents or hardship. He referred again to the alleged lack of consideration of net income as against gross income.
The law is, as well as the expectation, that the Tribunal will consider the matters listed at s.117(4) of the Assessment Act.
In reading the decision, the Tribunal sets out the background, at paragraph 4 and 5, refers to s.117(2) factors – the grounds of departure, then at paragraphs 7 to 10, refers to inferences about private school expectations (which were open and not subject of the appeal) and then goes to a consideration of the evidence. While not explicitly stating each element in s.117(4), such is not required and I cannot detect that the Tribunal did not consider the duties of the parents to maintain the children, the proper needs of the children, the income and earning capacity of the parents, their resources, their commitments, hardship and the otherwise proper nature of the decision. Paragraphs 13 to 26 specifically look at those issues and paragraph 27 shows the Tribunal was aware of looking at the properness of the decision.
On that basis, no error of law is identified.
That being the case each and every ground is dismissed, consequently, those orders which are sought by the appellant cannot be made.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 28 May 2012
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